IN THE HIGH COURT OF JUDICATURE AT JABALPUR Cr.ft.No. <^ ^^ of 1998 Oiwsion ii°"a ; 'l^r'-. l: -]-"in3' CRIMINAL APPBAL_UNDER_SECTXON 374(2) OF THE,_CQDE_OIL_CR2:MINAE PROCEDURE. -1973 / Appellant: DevendS-a alias tievau, aged 27 years, Accased ,. '; /- • (In Jail) son of lat^Qangaram Sahu, residen-t of village Mundera, P.S.Munderdrfii, District Durg.M.P. if^^S^-^-— versus juocata ResDondenti The.State of Madhya Pradesh si^^ki.Ss-^s^sy&^i •-^5: .^^^, sgsw^s 11».?; ^Xl-HG-78 ^) ; vd-GTi.'-q iti 1o)«,iti>nl<<-i<i<»,RtriWy wiflwiwn^ 3Ilt?TiRW^ijc!^) 3II^?TTOR'fi'l> aairan^CTsPm; n^A.^ :i, VSi r- Gv-^."^ ^-pp^ fuo'6y;?9 ^ -..,....... ... ...t.t......,.. .„,. ^200 ?^lf8R^TfeT 3ff^?T &IVtSt6N5E!KaBT HON'SLB SHRI:L.C. B «pi<ifCTJ)if!*inY^ffe<^''(R|<<;]< ^siRNaii^ST HON'BLE SHRIV.K.S 24/10/2005 100 & ASTAVA,JJ. Shrl Arun Kochar, Cofunsel for the appeUant. Shri G.K. Beriwal, Dy. Advocate Generai for the State/respojadent. Oralorder. Today this matter ha|s been listed for disposal ofM.Cr.P. Nps. 2302/2003 8s 2318/^ graiit of bail durmg pendei| 005 for suspension of sentence and icy of this appieal- Coi-insel for the ac|;used/appeU.ant subDiits that the accused is in custody for <he last about eightyears, therefore, the appeal itself may be h^ard for final disposai. Accordingly, with the consent of couns^l for both the partles the aryuruents on appeal were heard. | By this appeal the a<j;cused/appellant has questioned the legality of convlction and s^ntenee dated 19/ 12/1997 passed by leamed 3rd Additional Ses|sions Judge, Durg in Sessions Trial No. 288/97 whereby leaijned 3rd Additional Sessions Judge, Durg, after holding the ae^used/appeUant guilty for eommission of the offence iinder Sectlori ?02 of the I.P.C., for committing the muixler of his mother aamely Panchobai, sentenced Iiim to undergo unprisoniaent fqf- Hfe and to pay fine ofRs.2,000/-, in XI-HC-78 dT.q'-tiiqic)^, yTil'<-i<i$, Rlrtmyt MHiAiSB^f^ SII^SIOTR-iJ* (PIT3II^?Tri)t|id» ^', 3n^?T(Rq»(ijclijc|ig) B^tTSR^lfer 3II^?T '2. default of payment of fin' months. Brief facts leadmg t<] 12/06/1997 at about 8. accused/appellant assault^ club on her head as a re' uijuries. The matter wa^ Gunderdehi at aboi.it. 7.00 offhe deceased. On receivfi Police Station, Gunderdetiil to fiirther underao R.I. tbr six filtng of tliis appeal are that on 00 a.m. in Village Miindera the ;d his mother Panchobal with the lult of which she succurabed to the reported fo the Police Station >.m. by Ku. Manju (PW/8) daiighter the report, Station House Qfiicer, aad proceeded to the ]^ Panchnama of the body ani| post-mortem exammation Hospital, Durg, who cond) thc postmortem report (Ex| cause ofdeath was due to ^ head injury. After complet^ was tlled against the accus) Magistrate, First Class, for trial to tlie Sessions J| Additional Sessfons Judd Leamed 3rd Additional arguinents and perusal of| priina facie, offence underj <ni<irn<ft;T*<l*in)'^'fe'<9 '(Rf^K ^srf^lTSII^aT /a' ]registered the Crime Number 57, fiace of occurrence, prepared tbe i|l the bodv of Panchobai was sent for t(? Doctor R.N. Pandey (PW/5) District tcted the postmortem and prepared ^P/5j. In the opmion ofDoctor, the ^hock and haemorrhage as a result of |on ofthe investigation, charge-sheet id/appeliant tn the Court ofJudicial ',, who in tum, committed the case -idge, Durg, from where learned 3rd recelved the ease on transfer. .essions Judee after hearing fhe fhe record, was of clie opinion ttiat Section 302 of the I-P-C-, was made XI-HC-78 fe7 \jCT| '-yioirtq; u>Tl)tf^(»,Rril?H^<( niicti^iT^ STt^ST IRl^ ('^tg^) ^200 aii^?T9?TR-ii<b wiT3ii$?r**<i* s^nw^toai^sT --%- out against the' accused/! chaTge against the appeUaul to be tned, The prosecution in on accused/appellant examinet other hand. stateinent of ti under Section 313 bf tKe material evidence appearinf innocent and has not witriess nainely Smt. Tript^ Additional Sessions Judad counsel for fhe accused/ap] accused in the manner We have heard leame<l As far as the dcath of 1s conceraed, the same is it the accuSseit^appeUant. Ap^ of P.W/1 - Latabal and PW\f evidence 6f FW/5 Doctor R.| death of Paachobai wss hodi Now e&ming to the int in coiainittuig the crtme ul disputed 6y counsel for th<i has categoricalty stated <Pt^Frt<?lT) ^TqcSt"^'^1^' '<fvttCl'< ^aif^qan^a '4ppeUant, accordingly frarued the |who denied the chargc and claimed ler to prove the offence against the (ft as manv as tenwitoesses. Ontne 'fye accused/appeUsunt was recorded C-r.P.G., in which he denied tlie against him and stated that he is eora^aitted the offence and produced a Satiu in his defence. Learncd 3rd after hearing the arguinents of teUant, convicted aad sentenced the menltiQned above. counsel for both the parties. leceased Panchobai beiiig homicidal lot dlsputed by leained counsel for rt from that, in view ofthe evidence F8 Ku. Manju eyewitnesses and the N. Pandey, it stands proved that the hodiicidal in nature. roivement of the accused/appellant question, same has also not been accused/appellant. P.W. 1-Latabai th^t on the fatefiil day at about 8.00 XI-HG-78 \3T»q'0 |<4|<>i<4, t»Ti1'<1*lt»,RriN-l^ HmCTi^'fT^ 311^91 q?W (ijc|(j<sj4) 3n^nwR-fi<t> aaiTSII^Iditficb •? A a.m. the accused assaultdd Pancfaobai witn the club on her head as a result of whichl 'oemg friglitened left tlT| categoricallv corroborated <nitifCT<i)i*)i*ini"^' fe'iil ^RilWN ^arf^T3ll^?t has stated tbat on the fattful day the wlfe of accused started quarrelling with Panchobaf., She was demanduig share in the compensation a.mount wh respect of death of her husi fhere with lathi and assaull head as a result of whiclil Ishe feU down on the ground. She ^ scene. PW-8 Ku. Manju has. Ithe evidence of P.W. 1 Latabai and ieh was Teceived by Panchobai in jand, diiring that time accused canie ted Panchobai with the same on her Panchobai fell on the ground. Thc accused left the scene of o|;currence- Therefore, in view of the above the ocular evidencej the trial Court has rightly held thc accused guilty for commisbion of the offenee of murder of his mother Panchobai. We do jiot find any grbnnd to interfere with the findlrig of thc trial C-oi Leanied counsel tor| the deceased received a j evldent trom the Doctor'^ therefore, from the fact an| travel beyond Section 304) evidence on record whlch inother Panchobai with in1 On the other haiid, fuiding of the trial Court. the accused/appellant argiied that ^tngle injury on her head which is evldence and post-mortem report, tl the above evidence offence does not Part 2 of tl-ic I.P.C.., aiid there i.s no ihows that the accused assaiilted tris .ention to cause her death. learned State Counsel supported tfie -w XI-HG-78 'dw|f"q|<t|<»<j;UiTll-M<|S; R<?SI'(-iy'< *ii«ic9i^TTq? 3n^?TlRq>('jc|i'j4<Ei) sn^CTiFTftqra; awati^iaifi* 'fc evld^nce Havmg heard learned perused the evidence and leamed coiinsel for the acci. PW/8 Ku; Manju who is fhe of the accused in para-2 of ^ tliat tlie wife ofthe accused on a small matter and she w given any amount to fhein accoiint of the death of N accused caine with a lathi and lcft the place. The to that of the ^vidence of report is (Ex.P/5). Perusal| one tnjuiy of contusion of right temporal region. Rigl1 were fractured atid as pea Pandey there was one injurl head bone beneath the uiji nothiiig on record \vhich| assaulted his mother withl appears froiu the evidence the wife of accused was came with a lathi and fibd atid assaitlted <pi<irCT«iii*i!ioT^ le'd '(ful't^l't ^siKUfaii^st counsel for the peu-ties, we have that tfae ai'giiment advanced by |sed/appellant is not without basis. jdaughter ofthe deceased and sister [er evidence has categorically stated |started quarretuig with her m.otlier '|as saying that the decea^ed had not ^ut of which was received by her on tr husband. In the meaiitime, the ahd assaijlted Panchobai on her head of PW/1 Latabai is also almilar pW/8 Ku. Manju. The postmortem |ofthe report shows that there was bhe size of 3x2" over the head on tt frontal, parietal, temporal bones the evidence of PW/5, Doctor R.N. on tfae tiead and on opening ofthe i|uy was found fractured. T'here is soes to show tliat the accused infentiou to cause her death. It ?f prosecution witnesses that when qui^rreUuig with the deceased, accused on her head with the saine on a ll;il XI-HC-78 vd-cq r-<i,i<<irt^ u>-n1'fl<i<»^Plril'<-iy'< «IJ*IWI^TT^ 3n^9Tq51^(i^lfgcR) 3ii^?rwfS-fJ4> ?I2IT3II^SI**li* /'\K h'aju / V6' <<^ spur of m.oinent in.a heat of pre-mcditation. Looking to offence it canaot be said deceased with intention to satelv be inferred that the| causing injury with a latlii, Panchobai. Therefore, from| Section 304 Part 2 of th^ ingredients of offence pun^ I.P.C. were iiot satisfied, thc the trial Court regarding ci I.P.C. camiotbe austained. In the resylt, the conviction undtfr Section 3Q llfe miprisipnm.ent are accused/appeUaiit is convi^ ^assion without any preparation or |the circunistances aad wea}3on of tliat the accused assa-Lilted the ;ause her death. However, it can accused faad knowledge that bv tie mav likelv to cause the death of fhe abovc facts tlie offence under I.P.C., was made out and the [shable under Section 302 of the trefore, on tliis count ttie findmg of [inviction under Section 302 of the Part 2 of the I.P.C., and years. In view of the abd 2318/200.5 staiid disposed Sd/. •- L.C.Bhaduo - cpi<<In41Ti *i[+irtT^r'I«l^xfyi'^i^ ^sri^'Taii^n appeal partly succeeds and the 2 of the I.P.C., and the sentence of ;t aside. Instead thereof, the •ted for offence under Sec.tlon 304 ;ntenced to undergo R.I. for eight ve, M.Cr.P.Nos. 2302/2003 and Sd/- V.K.Shrivastava Judge fc ^'^