CF0000064386 Oivision Bench ^.[iniind^ IB the Hlgfa ©oartof Jtidteatare at Jafealpur (M,P.) G.BI. ippeal So^J.^_/ 2©©@» A£asll|.^| : mesh @ Eailash M&hajaason of aee^sed Balwant lahajaa, aged afeout 32 years, resiaeQfe of Llalgaa^ lagpar, I&w r/o Maiagal Bazar, Gadiari, Raipur* verstis. B^SE.aadsiil t gt&te of M.P. Griaiaal appe&l uader settion 374(21 Gr.P.a* XI-HC-78 3T[^T^)T^i4) c^TT3TI^Tsh^i<=t) 3' +<1+1<11 SftHlch ^^T^l^lcn^, ^TTl^Jl<o, f®ldiy^< ^&.A:.^D^. ^200o STT^rq^^T ('I^^ET) i^RTT^R: ^Tf^f 3TT^?T DMsJon Beneh: - Hon'ble Mr. L.C. Bhadoo. AQ.C.J. end Hwi'ble Mr. SIOTJI Kumor Sjnha. 4-1-2007 Mr. Vijay Deshmukh, couns^! Mr. U.N.S. Deo, <4ddJtiont Deput^ &ovt. Advocate for the St^te/respondent Oral judgment dictated on ID^. Per L.C. Bhadoo, AQ.C.J: - This appeaJ is directed sentence dated 314-2000 pc^sed| 'm Sessions Triai No25/99, wher\ holding the occused/appellant 90! 302 of the I.P.C. sentenced him N of Rs.2,0(X)/-, in default of yeor. <29<3|H5t The case of the prosecu^ married to the accused ond ther^ account of the dispute, she a; chNt^l4)T1 HTR^ff ^* te^ <Rl^K ^3Tf^T3TT^T for the appe!Iont. Public Prosecutor with Mr. D.K. GwQlre, the judgment of conviction and c^rder of by the 1 Additionai Sessions Jud9e, Rdpur, ^by iearned ^dditiona} Sessions Judge after ty for* commission of offence under Section undergo imprisonment for life ond poy a fine payn|ent of fine to further undergo R.I. for one ion, in brief, is thot deceased Bharti was ^ere two chiidren one boy <& one 9irl out of the ^edlock. As there was contir^uous di^pute betweenthe husbond and wife, <ss a resuit of which the dec^ased storted residing i^ith her porents. Thereafter, ^ain the accused 1^ook Bharti to his residence. However, on icin storted residing ^ith her parents in ©udhiyari. She was ii/orking in S^gar CoIIection. On th©fGtefu! day i.e. 15-7- P.T.O. ,/^_- XI-HC-78 3Ti^T^)T^J4) c^TTW^T^RT^ ^t< @ +11+1^1 Sh+lich ^^T^I^I^^, ^Tfl^Ko, fa^My .&.A:^.(?3Z ^ 200 o 3TT^?T^C^K ('{dl^<s< <^ST) ^RTT^R: ^ff?cf 3TT^?T ^2. 1998, when she WQS returning Umesh @ Kailash Mahajan met he^ him to his house to which the de^ up to her house. They entered th^e to whether" she witi reside with hih thot time, mother of the deceaseld the deceosed moved towGrds the ] her in the room, cought hoid of mother of the deceased was came to open the door and then started weeping and in the me^n Horish Maliewar (PW4), brother saw the accused dttQcking his sist^r kn^cking w<ts Thereafter, the matter Ex.P-1 and based on that the r©9!stered the crlme under Ex. Section 307 of the I.P.C. and ief1 ^as sent to the hospital where Dr| Bharti and noticed as many os report Ex.P-6. Thereafter, inj| DepQrtment where she was opero'| evidence of &r. P.L. Yadu, sple^ dQmaQed, her spleen wos remove< hospitat on 10-8-1998 during chJ^F^41T1 ^TRoff^ fe^ <Rl^K ^ 3Tf^TT 3TT^T |o house after ottending her duty, accused on the wcy and csked her to come clono with ;eased refused arsd the occused followed her e room/ there the accused Q9ain asked her QS or not on which she repiied in negative. At came and started knocking the door. When door for opening it, then the accused pushed ^er ond attacked with o knife 5-6 times. As the door, Rcya, son of the deceased, jfter seeing the condition of his mother, Royu time, the deceased became unconscious. |of the deceased, QJSO came on the scene and Bharti. reported to the Police under &ehati Nalishi St^tion House Officer, Police Station: ©udhiyari .P-10 for the commission of offence under for the scene of occurrence. Injured Bhorti >r|. R.K. Pondey (PW-4) examined the injuries of five incised wounds and prepared the injury JJLired Bharti was referred to the Sur^ery fed upon by Dr. P.L. Yadu (PW-10). As per the sple^n of Bharti was damaged, diaphrc^m was by operation and ultimately, she died in the treafment. AAerg intimation was sent to the Police P.T.O. XI-HC-78 ^TI^T^T^ich ^@I:3^?T5h^ic^ *11*1^11 S»»*1ict» 3'^^i^id^, ^TH^-l«o, R<ni<H^< ,.&.A..S-i^.^^ sn^rq^F ?CTT83T ^ri?(T ^TI^T -3. I^QS Station on s^hich the offence Post-mortem was conducted by the post-mortem report (Ex.P-l< CQrdio respiratory fdlure as Q During Poiice custody, the accus| the weapon of offence, and in possession under Ex.P-4. The Inv^ to the Panchas, prepared the inq Mahojan. The recovered orticiet Forensic Science Laboratory, Ra| were received. After completion of investt Judiciaj AA^istrcste, First Class, Sessions Judge, Rdpur from w| R<23pyr received the case on trlcyis| The prosecution in ordet] examined ten witnesse^. Stat< Section 313 of the Cr.P.C. in whid in the prosecution evidence andj Nagpur ond Bharti took divorce f cnme. chi^f<n4I-i ^i^<nT^te^<^i<-<-i< ^)'3Tf^T3T1^T converted into Section 302 of the I.P.C. >r. Scinjoy Kumor Dadu (PW-7) who prepared !) and he opjned that the deoth was due to result of stab injury and its complications. id gave memorcindum Ex.P-5 regarding knife, )ursuance of that, th©knife was taken into sstigating Officer after giving notice Ex.P-SA jest (Ex.P-9) on the body of deceased Bhorti were ^ent for chemicaj examinction to the |pur, from where the report Exs.P-Sl <& P-22 |9^tion, charge sheet was filed in the Court of ^dpur, who in turn committed the case to the icre learned 1st Additionof Sessions Judge, Fer for trial. to establish ch^e agdnst the accused tment of th©accused was recorded under he denied the moteriaj appeoring agdnst him stated that on the fateful dciy, he wos at |som him, he has been folsely impIicQted in the P.T.O. XI-HC-78 3n^T^)T^Tt^ cW;3TT^T$b^Ich 3:^T^1141d<4, ^TH^4l<o, I®«rtl^^< t(THCrll ff»*ll<»).co..^(.?.y..^2ooo STT^Tq^F (yt^si^) ^rreK^rsn^T .4. Learned ^dditional Sessiol parties as also after perusal ol accused as Qforementjoned. / 4)i^Id41^ <-ii^<nT^tel<ft<Ri^< ^^rf^TCT^r p^ Jud9e ofter hecirin9 counse! for respective the record, convicted and sentenced the We have heard Mr. Vijay dnd Mr. U.N.S. Deo, learned Addi| iearned Deputy ^ovt Advocate on| .Deshmukh, lecrned counsel for the appellorit 1-ional Public Prosecutor with AAr. &.K. SwGlre, [behdf of the State/respondent. Mr. Deshmukh, learned coi|insel for the appeilant, has not disputed the homicida! deoth of Bharti. Ape^t from that, from the ocular evidence of Hcrish Maiiewar (PW-1) ^ R<ya AA|Qllewar (PW-2), QS also the medicQJ evidence t& Dr. P.L. Yadu (PW-10), it is established th<rt of Dr. Sanjay Kumor Dodu ^W-a7) the death of Bharti was homicidaj As far QS invotvement of tlt is concerned, conviction rests pr (PW-1) & Rqja AAaIlewar (PW-2)| question. Harish Matleww 0:>W«1) day, in the evenin9, Bhorti was re\ Kdlash abo came fotlowing her, h^ n nature. ic accused/QppeIIant in the crime in question marily on the evidence of Horish Maifewar who soid to have vyitnessed the crime in ^as stated in his evidence that on the fateful I'urning from duty to her residence, accused I was in drunken condition, he took her in a room on the ground floor and attfljcked her with a knife. Whsn he reached in the room, iast ossauit was being f^ade by the Qccused, Raja <& AAonica were already there, on hewing their sc^eams, he came down and saw the incident. The !ast assQuft ^QS made on the the deceQsed and the accused/al liead of Bharti. Rcya Maiiew/or (PW-2), son ged about 7 years, has also stated in his evidence that his parents used t^ quarret with eoch other, on the date of P.T.O. XI-HC-78 HW^ll fft+lich 3'^T'^I^I^^, ^Tfl<M41<o, f^<rll^^< _.&fi:a!.?^/ ^2000 311^1 M^ch (lic<i^c<^) 3Tl^T^)T^icb rTI^?T $b^l<^) ^cTT^K ^cT 3TI^?r wfrs incident he was residing wth hi^ mother from the room of ground unde also come down, his fatheH cross-examination of these two any circumstance, which discredit knife, the weapon of offence under Ex.P-4. Learned counsel fdi to show that on th©basis ofl prosecution has not been abie t<|3 crime in question. The accusec| CrP.C. gave Q faise expiQnation whereas, these two witne-sses accused in the room of their reasons, we are of the considere<| establish involvement of the doubt. that hou^e accifeed at>l: Leorned counsel for the happened in the night of 15-7-3 about 25 days after the inciden-| heat of passion without establish that the accused death. Therefore, offence again^t 304 Part-II of the I.P.C. ossaufted chi^f<n41Ti TTm^rf ^* fe^t <Ri<•<-!< ^3:f1^T3TT^T materna! uncie, he heard the screcim3 of his Ifioor, he came down, thereofter, his maternal was attackino his mother with the knife. In ^itnesses, defence ha^ not been csbie to eiicit |'s the evidence of the^e witnesses. Mcreover, recovered ot the instance of the accused c|r the appellant was not able to ar9ue any point the evidence of these two witne^ses the establish invoivement of the accused in the in his statement under Section 313 of the on the date of incident he wa5 at Nagpur, ^we ccteaorically stated that they -scw the attacking Bhcirti, as such, for the foregoir^ opinion that the prosecution has been abie to in the crime in question beyond reasonable clppeiiont argued that in this case, the incident 1998, whereas, Bharti died on 10-8-1998 i.e. \. The incident happened all of a sudden in o premedit^tion and the prosecution has not been abie to the deceased with intention to cause her the occused does not travel beyond Section P.T.O. XI-HC-78 3TT^T^T^i<=b cTSTT3:TT^T5h^i<=b ^IIHdl Sh+lich TST ^ii<4i<n-4, t$T{l-Mli6, (c|dl^y< ^^..(A..A;?^.7.^/.^2ooo ^) {?TM5|ch (y^q^;T) ^RTTW: ^ffN'3TT^T -^- On the other hcaid, AArl supported the iudgment of the tr^ the accused stobbed the deceast ^pleen and diaphrc^m were damc^ed commit the murder of Bharti. In order to appreciate th^ we have perused the evidence. I'| mcsde by deceased Bharti before that on the day of incident she wbs day when she was returning fr<t husbond of the deceased/ met h4r hou^e, which she refused and sh| her, entered in her room ond cg^i 3^ith him or not to his house on wh|i to reside with him. At thot tinl mother of the deceased, when th^ open It, the accused pu^hed her, her with the knife 5-6 times wilh screams, Raja came and she beconl Tnis statement of the dec^ the dececised to accompany him| dececsed Bharti. In the mean tlrN of the house, .^hen the dece©S€|d accused attacked her with the 1<?1 chl^f<rt41Tl Wraf if ter^- <Ri^« ^3T{^T3T1^T ©walre, learned Deputy ©ovt. Advocate al Court and argued that the monner in which fcd with the knife and as a result of which shows the intention of the accused to arguments advanced by respective counsel, has come in the dyin9 declQration (Ex.P-25) >.K. Sinha (PW-6), the Investi9atin9 Officer, residing in her pcsrental house arsd on that ?m her duty, on the way, accused KQslash, and asked her to go along with him to his 2 came to her house. The occused foilowed in asked her os to whether she wi!l go o!ona ich deceased Bhorti said that 5he is not going ie, main door of the hpuse was knocked by i deceosed tried to move towards the door to ccajg^t ^0^ of ^^^* by one hcind and GttGcked the other hand. Thereafter/ hearing her \e unconsciou^. sased shows that the accused was persuadin9 to reside with him, which WQS refused by e. mother of the deceased knocked moin door moved to^ards that door to open st, the iife. The obove fact shw/s that when Bharti P.T.O. XI-HC-78 W^T^)T^i<=h ^l<^T5hHI<=t) \... ^Hi^ Soma +11*1^1 r»»*iicn 3^T ^I^K^I^, ^TO^Ko, ^ldl^l^< ^..&...A^n^^2,^ 37 3TT^T^^K (<{di^sl(^T) ^cTT^K^rfNw^T - 7^/ blatantiy refused the accused to| frustrcited and in a heat of pass Inltioliy he was persuading the d^ceased Therefore, it cannot be inl came prepcred to attock the Bharti, his wife, to Qccompony hi proce^s when the mother of the| accused ond he attacked the dect days of the injuries inflicted b^ that th©case of the accused i5 I.P,C., GS such, he is iiable to be) I.P.C. inyerred from the above facts that the occused de^eased. In fact, he vyos requesting deceQSed ib to his house, when she refused ond in thct Ideceased knocked the door, it infuriated the lecbased. AAoreover, the deceased died after 25 the accused. A II these circumstances show ^overed by Exception 4 to Section 300 of the comicted under Section 304 Part-II of the ipp^a! In the result, the opp^ comiction and sentence imposec| I.P.C., he is convicted under SecDi undergo R.I. for ten years. It i^ 4-12-1998 till date. "TliepeforeJ the above period Ggainst the sen^ Sd/- Ag. Chief Justice cr)i<Ml^41-< <-ii^<nT^:te^<Ri^di< ^ 3:rf^r w^r [accompany him to his house, the accu^ed felt |on, he Qttacked the deceosed with the knife. to Qccompany him. is portly allowed. While settin9 aside upon the accused under Section 302 of the ion 304 Part-II of the I.P.C. ond sentenced to stoted that the accused is in detention smw the accused shal! be entitJed for set-off of ence imposed upon him. Sd/- SunilKumarSinha Judge <"" \^/.^ P.T.O. ^b