:H-HC—78 3!A?[ 9;; K.1W '°ER .31R?[ aiHiqi 3=E?r -<<|A| (<•»<<, ^xti'y'itS, fsi^i'yy CvA.Mo- \%Q^1^00 . /C23 •^/ 200 an^?r'qaw (4<<!-j«i<{w^ TCIRR'?rf?g SD^I APPELLANT <!n Jail) Jallaram, Jallaram. S/o Yadram, aaed about 47 \rears. Nagwanshi, R/o Kukargaon, P.S. Bafabahar, Distt. Raigarh (M.P.) (now C.G,). CaNe RESPONDENT Th Ba-«»y (Criminai Appeai under] DivisiorLBench^: Hon'bte Shri L.C. Bhadoo & Hon'faieSJtrLSisniiKymacSlrih^ iti This is an aDolication for urtent The accused/appellant is i(i has been granted bail by a Benc^ but on account of poverty he Therefore, with the consent of le^t heard finallvfor its disposat. Accordingtv, i.A.No.1 stand< CrANo,1808ffOQO Oral judgment dictated on efras cbl-4id4t'1 'HP^f "^^fe^ ^fai4^1< %3ifin3ni?i -Vereus- State of M.P, (now Chhattisgarh), P.S. ibahar. Section 374 (2) of th®Cr.P.C.) M 1-10-2007 Heard Shri R.K. Jain, coi|inset for the appellant & Shri Ravindra Agrawal, Panel Lawyer for the State. I.A.No.1 hearing. detention since 1997. Even though he of this Court vide order dated 2-9-2004, jias not been able to fumfsh the bail. Irned counsel for the parties, the case is ^ disposed of. H-HC—; 2:!Riff W h-U'-h 'cTS?T sn^T^HT^ « ~ycvf •^||<4|<4<4, ($Tfl^'l(», (s|0iyy 3tl^?r tisra; cqgf^g^f ^aiw ^iftg aiK^i L.C. Bhadoo. J The accused/appeliant hasl conviction and order of sentencfe Judae, Raigarh, in Sessions Trfel guilty under Section 302 of the Loharsaiand sentenced him to urjdergo tl 2) Case of the prosecution, fln a.m., Lohar Sai (since deceased) Sajansai (grandson of the deceas|ec At that time, accused came carryi(ig the deceased with tha same on fatal injury&died instantaneouslyl in Police Station Bagbahara undef the crime left for the scene of Panchas, prepared inquest (Ex.f axe, weapon of offence, from th4 into possession the blood staineti under Ex.P/5. Blood stained Blood standing dhoti of the (Ex.P/9) was prepared by the Haflka postmortem examination to the where Dr.Shaitendra Upadhyay (FfW Lohar sai. Postmortem report is dealh was due to syncope & chest. -Death was homicidat <^t<iI<rt<Ill +1M<ylf ^fs^il <P^+^1< ^siRnsii^f preferred this appeal against the judgment of dated 28-4-1998 passed by the Sesslons No.155/1997 whereby he has been held ndian Penal Code for committing murder of imprisonment for life. odcurrence. PlO) brief, is that on 21-6-1997 at about 11.00 Vi/as sitting in front of his house and PW-4 |ed) was applying oil on the back of Loharsai. axe concealed behindjhe cioth & attacked fiis chest, as a result of which he sustained The matter was reported by PW-1 Karamsai Ex.P/1. InvesUgatins Officer sfter registering f ~ " - - After giving notice (Ex.P/2) to ttie on the bodv of Loharsai. He seized the place of occurrence under Ex.P/4. He took & Dlain soii from the ptace of occurrence fai of the accused was seized under Ex.P/S. was seized under Ex.P/8. Site plan jlka Patwari. Bodv of Lohareai was sent fbr Heatth Centre, Lailunga under Ex.P/12 fW-13) conducted postmortem on the body of [Ex.P/12-A. Doctor opined that the cause of intemal haemorrhage due to injury to lin nature. Seized articles were sent for lunbi dedeased Pifmaw exdessive l-HC— •sff^l^fe'N? ?CT S:I^? i.b-li+ •!:gi!l!a? lilil;' 3^ET '<(1<<1<?'>^, ti)Tfl'M'l$, Rf'T'iiyy TRW ( ^giw^iftgan^t examination to Forensic Scienij (Ex.P/16) was recewed. As per the accused as also on dhoti of th^ (e Laboratory, Raipur, from where report ffSL report, blood was found on axe, lungi of deceased. stigjati 3) After completion of investiig Judicial Magistrate First Class. to the Court of Sessions Judge, R^ itigjation, charge sheet was filed in the Court of Dllaramjaigarh, who in turn committed the case kigarh. 4) In order to establish the prosecution examined 13 witness under Section 313 of the Code o) material appearing against him in is innocent and the w'rtnesses are 1 5) Learned Sessions Judge af(i convicted and sentenced the accu^ed/appellant 6) We have heard Shri R.K. Jt Ravindra Agrawal, Panel Lawyer f<|>r the 7) Shri Jain. learned counsejl homicida! death of Loharsai. M<breover deceased) has stated that on the his grandfather. at that time accus chest of his grandfather & ran awat bv medical evidence of Dr. Shailertdra on 22-6-1997 he conducted He found that there was an int ct)f*fl(vrall ^tW^ ^^Vt ^i-^K ^siRpT-sii^f charge against the accused/appellant, the ss. Statement of the accused was recorded Criminal Procedure in which he denied the the Drosecution evidence,,'He stated that he lars. :er hearing counsei for the respective parties, as aforementioned. ain, leamed counsel for the appeilant & Shri iState. ^l for the appellant; has not disputed the l<|>reover, PW-4 Sajjansai torandson of the fbteful day he was aDDlvina oil on the back of ted came carryina with axe, attacked on the V. The above ocular evidence is corroborated Upadhvav (PW-13), who has stated that loostmortem on the body of Loharsai. fcised wound on the chest in the size af :?a-H 3)1^1 »iiTh-M: 'P-JT ait?i aww 3rcT ^i^irt^, OTflw'is, fs|<?iiyy ani^r iHq; (Tpf^^tr 'renwdteT sii^r 2°x 1" bone deep, as a result of iit was opened. Clotted blood was d was due to syncope, as a resuit of[ is Ex.P/12-A. He further stated < offence. was sent to him for present on the axe and in his would be caused bv said axe. Hi the above ocuiar & medical Loharsai was homicida! in nature. iitjury, the right ventricle was cut and the otate jresent in the right ventricle. Cause of death [excessive haemorrhage. Postmortem report (liat on the same day the axe, weapon of exan|iination. He examined the axe. Blood was o((inion injury found on the chest of Loharsai l^ report is Ex.P/13-A. Therefore, in view of evitlence, H: is established that the death of 9) Learned counsel for the evidence of PW-4 Sajjansai, it hajs witnessed the accused attacking trte attention of the Court towards parti argued that this witness has stated the accused, but when he started attacking, but he coutd not jdentiM running away.therefore, from this witness identified the accused whil< chl^lTcFi^T 'RTOcff ^f^'fe^t' <f«T<^l< ^aifiiHsn^r S) As far as invoivement of I concemed, PW-4 Saiiansai (gran< incident whereas before PW-2 Nal @ Buchuku & PW-9 Dhanesfiwar, fte accused made extra judicial confession. the accused in the crime in question is Ison of the deceased) is evewitne^ to the tarsai, PW-5 Shwratan Singh, PW-7 Ghasia jppellant argued that from the scrutiny of come on record that, in fact, he had not deceased with an axe. White drawing the 6 of cross-examination of this witness, he that at the time of attack he did not identify i^inning he identified him, he saw the person immediately and he saw the accused while levidence it cannot be held that, in fact, this attacking the deceased. XI-HC—78 sn^i ^i R-)'[cb ^SH STT^T sh^iqi 'ffi Tc^ •*iwfl^, w^wie, (sKrtiyy ^tMdl rii^leb "^t, 200 SII^W 1RI% (1pfyi^T) ?^IIW8fW 311^1 cbl<<^4ll ^l4^t tf,fetst ^^R ^sifipTsn^i 10) ln order to appreciate the ^rgument advanced by leamed counsel for the appellant, we have scrutinized th^ evidence of PW-4 Sajjansai. !n para 1 of his evidence, he has categorically sjtated that 8-10 days prior to Ihe incident his grandfather (Loharsai) sustained the fateful day, Loharsai was sitt oil on the back of Loharsai. In th^ meanwhile. accused came from the wal! side carrying axe concealed behind th he attacked the deceased with aie on his chest. threw the same on the spot & ran awav, as a result ofwhich the dav liaht at about 11.00 a.m. was applying oil on the back of d saw theaccused came and he,| where will you go". Therefore, it 1 injuries on account of tail from a bicycle. On ng at the aate of house and he was aDplving ^ cloth and said that "today where will you go", tis arand father fell down. Deceased raised scream that he witl not surviv4, 'on which this witness-'cailed his mother, informed her about the incident t sterted weeping. The incident took olace in ^o 12.00 noon. This boy, as per his evidence, eceased. He has categoricallv stated that he in fsfA, challenged the deceased that "today sannot be said that this bov had not wttnessed the accused while attacking the deceased. Being a 12 years old chiid in cross- examination, he may not have b^enabte to understand the questions properly; therefore, he replied that he iden^ified the accused while running away. In ciear & cogent manner, this witnessl has stated that the accused attacked his arandfather in front of him. 11) Moreover, the above e|vidence is corroborated by extra judicial confession made by accused in 1|ront of PW-2 Naharsai, PW-4 Shivratan Sngh, PW-7 Ghasia @ Buchuku & PW|-9 Dhaneshwar. In order to place reiiance on £T-Hr—- .^^2: ^^f^n^fi, g^tpi^, f^roy XI-HC—78 .S^^I'^W 'ciSFT STT^T shl-(Tc*i aNlt' "s&WSfSll 'S^ T^WI<ft<t, tSTtiy'IC, fs|01Uli< TO?IT *M|sb "^ 200 an^yr iiaq; (1pf^R?r) TCfRR sf??r 3D^r the exfra Judiciat confession, it i must be voluntarv, true & Drompt 12) !n order to ascertain the aitove three conditions, we have scrutinized tte evidence of above witnesses. 13) PW-2 Naharsai (brother o< day he retumed from his agricult|jral in the varandha of hi? house. Alj and said him that he has committ^c Thereafter accused ran away. saw him Ivina dead. There was was oozing out of the injury. In Sajjansai was present there. He with an axe & he left the axe on| Saroanch. This tn f*ct PW-5 Shivratan Singh, corroborated the above evidenc^ noon Karamsai came & informecl with an axe and he is lying dead occurrence & saw that Loharsai the deceased. Blood was oozinii aiso oresent there. He disclosed on the back of deceased: attl grandtather with an axe. In ct)>'4i<¥)<flrlT^R^ff '^^^St ^T^R i; 3fRn 3it^?i necessary that the extra judicial confession the deceased) has stated that on the fateful field. At about 12.00.cioon he was sitting that time accused passed through that place ted the murder of his brother, he can go & see. his witness went to the house of his brother & injyry on the stomach of deceased & btood t. he brought water & aave to fte deceased. Idisctosed that Jataram attacked the deceased the olace. Thereafter Karamsai v^nt to calt Sarpanch of the viltage, who has also and stated that at about 11.0) a.m. to 12.00 that his father has been attacked bv Jataram (sn the spot. Thereafter he left for the place of sfras Ivina. There was an iroury on the chest of out of the inlurv. At that time. Sajiansai was (hat at thetime of incident, he was appiymg oit of sudden Jataram came & attacked his (tss-examination, this witness has denied the critss S-HC—78 al,iii!1 s'l^r ?ii fii'iit; 'CT 311^1 fl*«fl 3^T "i(l*llcl><4, ®Tfl^'t<»,Rl<>>l<r<y an^r iraq; (^qf^gqg) ^giwafl^3iTi?T suggestion thatthe accused madel coerolon. <sia> Weeo 15) FW-7 Ghasia @ Buchuku] stated that at about 12.00 noon He and made extra iudicia! confesstotli When he enauired from Jataram ds accused has stated that he has staving. He said that he will not his brother's house. Thereafter 4-i took him from his house. Therefdre judidal confession made bv the adci the Court. because he is an indej house in order to take shelter. he accused had attacked the deceas search of accused and asked accused to the villagers and they td accused made extra judicial corroborated the above evidence. In view of the above extra front of four witnesses, the ocililar corroborated. Therefore. in viewl considered opinion that so far as auestion is proved bv the Drosecuti no interference bv this Court. 'hlitlclfl-t 'qiTOf 'if.fe^t <hts.K ^Taifinsii^r extra judicial confession under any threat or is also an independent pereon, who has <e was at his residence. The accused came that he has attacked Loharsai with an axe. ^s to whv he has come to his residencs. the icome to his residence for the Duroose of him at his residence & he should go to persons came in search of Jataram & they '., tfie evidence of Ghasia regarding extra dcused before him insplres'lut) confldence of >i?endent witness. The accused went to his ienied to gwe shetter to the accused, as the ^ed, in^the meanttme 4-5 viliagers came in about the accused, he handed over the (ok him to the place of occurrence where the donfession. PW-9 Dhaneshwar has also ludiclal confession made bv the accused in evidence of PW-4 Sajjansai stands of the above evidence, we are of the complicitv of the accused in the erime in bn bevond reasonable doubt. which reauires the mu.mu MrIWIl? ]elnl]UU< XI-HC—78 Tssf •^m<Aii, 8'Tf)<i'i<o, fieiiuy f£. '^i^ •^200 •s^^" sn^rqn'f^iRr 'dW S^^T^tTf^ mi i»to sn^v wv (Tpf^s??) ^wiiw'Hftffsn^i 17) Learned counsel for the attacked the deceased only once was no intention to cause death does not travel bevond Section laccused/appeilant argued that the accused the injury was deep up to the bone and there Therefore. the ofifence against the accused 304Part-ll ofthe tndian Penal Code. 18) On the other hand, learnec) ofthetriaiCourt. In this case, the prosecuti^n to establish that why the accus^d intention has to be oathered frorrt ascertain the intention of the accitsed, in the matter of Thangaiya vs. s^ nature af weapon used, place of & other surrounding circumstancies. evidence of the case, the accusW deceased that "todav where willl such a force on the chest, with art right ventricle was cut and the d^c< the above facts, the irtention of Loharsai. Even PW-13Dr. Shail^ndra responsible for the death and th^ result of excesswe haemorrhage.l ' 2005 Cri.L.J: 684 ^l^fftifl-T •4T^i?ff ^f,^1^ <f^R^R ^afRfHan^r eounsel for the State supported the judgment has not been abte to adduce any evidence attacked-the deceased. In such a case, the facts and cireumstances-pf the case. To as has been held bythe Supreme Court (ate of Tami! Nadu1, the Court has to see the ^ssautt, part of body where injury was infiicted >. !f weflook irrto all these aspects and the came 'wSh an axe, immediately asked the Ivou go" and he attacked the deceased with axe (deadly weapon), as a resuit of which the jceased ciied instantaneously. Therefore, from the accused was writ large to cause death of Upadhyay has stated that the injury was deceased died on account of svncope as a 3-HC—7S S^ST ri)l<)l<7><y, SiTflti'IS, plrtl'M^ 9 sni^r w Ki'ii'sh *<TSTT 3TR^T sh*1|cb 9 rf^ WTPIT a»*4ich •WT. 200 ant?r 1»^R (4<ifA°i<w) 'gtgiw ^ifCT 3ii^?r 20) For the foregoing reasons, ludament of the trial Court in con^ offence under Section 302 ofthe |we do not finct any iitegalHy or infirmity in the i|Ficting the accused pereon for commission of iddian Pena! Code. 21)' !n the result, this appeal be it is herebv dismissed. Sd/- L.G. Bhadoo Judge ^)t<<^4l*1 "WRTf ^fe*^ <Rqt^i< ^siRri'sn^i na devoid of merit liabie to be dismissed and Sd/- SuniS Kumar Siuha Judge