CF0000062821 App e1 l ant- ( In Jail) R e spon (Elem: s; CRmiNsaL APPEAL'UNDER SECTION 374(2) GF THE CODE OF CRJMINAL paoCEDURE. \mli'” §W Criminal) E .Atma Ram s/o Shri Panka ram Rawatnf aged abcut 3O yrs, oyccupation— ‘Agriculture,Ré"sidence Alola’; Police Station- Kapu {Di stt- (Raj. garh (M .P f) .zd‘ The $tate of Maahyy¢§radesh through the P S Kapu, D1 stt—RalgarMMp) a IN THE HIGH COURT OF JUDICATURE AT JABKLPUR CR.A.N0 .VXLOF 1999 , XI—HC-78 3am, WW, W Wm @kQ-XH(~$.:6H“ ./?.%q \ 200 WW(W) m$riéw WWW mmwm Division Bench: - Hon'ble Mr. LC. Bhadoo, Ag.C.J. and Hon'bie Mr. Suni! Kumar Sinha J. 7—2-2007 When The appea! is caHed ou'r WW§WW %3T%1m1%31 (p , Mr. Prabhakar 5ingh, counsel for 'i'he appellant is nof present If is sfaied fhaf he is pracficing a‘i Jabalpur. r Therefore, Mr. Rakesh J'ha, Advoca‘h behaif of The appdhnt Mr. Ashish Shukla, Addi‘iionlal Public Prosecu'i'or for fhe Sta‘l'e/ respondent As per fhe PUD defed 12—1-2C able +0 furnish bail bonds in pursuc appeal is heard finaliy. Orai judgmenf dicfafed an Da1 ?er LC, Bhadco, Ag.C.J.: - i- fhe judgmen‘l‘ of conviction and order This appeal is directed agains > of sem‘ence dm‘ed 17m Mar-ch, 1999 passed by ihe 2’“ Addifional Sessions Judge, Raigarh, in Sessions Triai lNo.2/98, whereby Iearned Addmona! Sessions Judge afTer holding fhe ac: offence under Section 307 of ‘ri imprisonmeni' for life. The case of The prosecufion, Jhii'ku along wi‘ih his grand—fa'l'her Taking bai'h. When They were refurning, ihey sow fho‘i‘ fhe accused/ a, was appoini'ed fo argue fhe appeal on 07, i-he accused/appellanf has nof been ince of fhe bail order, fherefore, ‘i'he used/appellant guilfy for commission of 1e I.P.C., sen‘renced him +0 undergo in brief, is fhaf on 18-11-1997 injured Mongol Sai wenf To Kharri River for P.T.O. }5:. XI-HC—78 WW, WW, IITIWIT ami‘aa Q2.».+}.‘.£%§?. «7‘1 mmwafwa) 111 % mam WWW mawrsam /2—" appeHan‘r was b§ocking ‘rhe s‘rreef he is spoiling fhe sfree+ drain on “how you are concerned, who are wifh a spade on his head as a resu fhe mean iime, fhe accused ran a The police under EXP—L J'hifku 10) who prepared The injury repo fhe X-my report, parie‘rai bone of of memorandum EXP-2 given by 1' e accused, ‘Hne weapon of offence spade was recovered under EXP—3. Affer completion of invesfi of Sessions Judge, Raigarh fr‘ Judge, Raigarh received fhe case c The prosecufion in order examined eleven wifnesses. Sfai'e Seclion 313 of i'he Cr.P.C. in whicl him in The prosecufion evidence. , Learned Addi'i'ional Sessio respecfive pariies convicfed and si We have heard Mr. Rakesh Mr. Ashish Shukla, learned Addil Tale/respondent As far as involvemem‘ of quesfion is concerned, Jhifku Ram WW%‘WW 35mm ’ rain. J'hifku asked ‘rhe accused as To why hich fhe accused became angry and said, ou fo say like fhis" and wracked J’hi‘rku 1- of which J'hii‘ku became unconscious. In . The ma‘H-er' was reporfed by Jhifku 'i‘o medicaily examined by Dr. 3'. Minj (PW- 1' ExP-13, he advised for’X-ray. As per J’hiiku was found fraci'ured. On the basis afion, charge shee'l' was filed in the Cour? where learned 2“ Addifional Sessions n fransfer for Trial. 1'0 esiablish charge against The accused men-r of l'he accused was recorded under i he denied The maferial appearing againsi' as Judge affer hearing counsel for the znfenced fhe accused as aforemenfioned. Jha, learned counsel for fhe appellan‘r and ‘ional Public Prosecufor on behalf of The fhe accused/appellant in fhe crime in (PW-1), +he injured himself, has s‘ra'red in P.T.O w w o XI—HC—78 HW,W1§,W WNW amiab— §v&f36? Tim 2w WW<W> WWW WWW mmwm #3 ¢ mmiffgé’rm %31%1?3?I%¥T his evidence fhaf on fhe fa'l‘eful da/ when he was returning af'rer- faking bafh in fhe river he saw ‘fha‘i' The accused was blocking fhe sfree? drain on which he asked him as 1'0 why he is ‘biock‘ng ‘ihe sfree'i drain. The accused became angry andnsked him “who are you quesi‘ion" and fhe accused assauHed him wii'h ihe spade an his head & c est The above evidence of Jhitku is corrobora‘ied by fhe evidence of endai §am (PW-2) & Mangal Sai (PW—4), grand-fafher of Jhii‘ku who was a comyanying Jhi‘i‘ku. In ‘cross-examinafion of fhese witnesses, defence has of been able +0 eiicii' any circums‘rance which discredifs fhe evidence of hese wifnesses. Therefore, invoivemen‘i of ‘rhe accused/appellant in fhe cri e in quesfion is esfablished. Now, coming fo fhe ques ion of convic'i'ion and senfence of 'ihe accused/appellan‘r under Sec‘iion 07 of the I.P.C., Dr. MD. Joshi (PW-é) has sTai'ed in his evidence ihaf on 15—I2-1997 when he was working as Medical Officer in KG. Hospi‘i‘al, igarh, Jhifku was brought 'i'o him for X— ray, he fook X-ray of ‘ihe skull of Jhifku and he saw fha‘l' fhe pariefal bone was fracfured. His reporf is Ex 5 and X-ray plafes are Exs.P-6 6i P-éA. Dr. J. Minj (PW-10) has s'iated in his evidence Thaf on 18—11—1997 he examined Jhifku, fhere was a cui- ound in fhe middle of ihe head in The size of 4 %“ x %” x bone deep and fher was anofher injury on fhe lef‘l side of The chesf below fhe clavicle bone in 1 \i g 1 u x x 3. u . lhe injuries were inflicfed by a sharp and h d object The above injuries could be caused by a spade. In his opinion had fhe injured was no'r properly freafed, fhen by fhe said injuries, deafh o injured was possible and fhe injuries were a . - XI-HC—78 2% Hw,m,m mmoowoo&ooo(%éo.~/ W mm<W> WWW WWW mwmm *4} In order 1'0 «Hr-ac? fhe p: person musf have acfed wi'rh circumsfances fhaf, if he by +ha‘ over‘f acf in execufion ‘rhereof commission of offence under Secfion 307 of fhe I.P.C. In fhe maffer of R. Prakas AIR SCW 815, The A’pex Courf he! “If is sufficienf 1-0 WM§W®W éawm *ovisions of Secfion 307 of The I.P.C., fhe nfenfion or knowledge, and under such :‘ ac? caused deafh, he wouid be guiH’y of murder. Therefore, The aceused musf have an infenf coup!ed wifh some ‘in order fa hold fhe accused guili'y for 1 vs. Sfafe of Karnafaka reporfed in 2004 ‘d fhaf justify a convicfion under Sec?ion 307 if fhere is prasenf an im‘enf coupled wifh some over‘i- ac'i in execufinn fhereof. If is nof essenfial ‘ihaf bodily injury capable of causing dea‘i'h should have been inflici'ed. Al‘l‘hough finding as i'o fhe intenfion may circumsiances, and ascer'i-ain wifhouf only reference a'r all i'o acfual wounds. a disfincfion be'rween ‘rhe ac‘l‘ of The accused and ifs result, if any. The Courf has +0 see whe‘i‘her 'l'he aci‘, irrespecfive of i‘i‘s resulf, was done an or knowledge and under the nafure of injury aci-ually caused may offen give considerable ossisfance in coming f0 a infenfionx of fhe accused, such be deduced from other may even, in some cases, be The Secfions make: also wi‘i'h i-he infen'ri circumstances m‘en'fi In The presenf case, as l as been discussed earlier, when injured J'hi‘i‘ku asked fhe accused noi- i‘o block fhe sfreef drain, fhe accused objeci‘ed fo i1' and immedia'i'ely a‘ lead & ches? as a resul'r of which Jhifku received fa‘ral injury on his he med in fhe Secfion.” fhe sharp edged iron weapon on l Hacked the deceased wifh 'ihe spade i.e. and his pariefal bone was fraci‘ured. Therefore, infen‘l‘ion of fhe acc ed or af leasi- fha‘f fhe accused had fhe P.T.O. ’x XI-HC-78 Wwm WWW mmwm g’ WWEwW axwm knowledge fhaf by aTTacking wi‘ih a spade he may likely +0 cause 'l'he death is es'rablished. The manner in which 1'he injuries were caused, the weapon of offence used and fhe place of establishes intention of the accused that the injuries were inflicted with a deadly weapon like spade with int antion or knowledge to cause the death of Jhitku. Therefore, offence against the accused under Section 307 of the Learned counsel for the appellant argued that looking to the nature of offence and background of accused/appellant is too excessiv . It is said that'the accused appellant is in detention since 19-11-1997, as per para 24 of the Judgment f the trial Court, thereby he has already u undergone the sentence of nin years two months. I.?.C. is es‘rablished and he has been righ‘Hy convic‘l'ed under +h<rr Sec‘rion. In the facfs and circumstances of the case, we ar of the considered opinion that it will meet The ends of jusfice if he is sem‘e Accordingly, ‘Hne appeal conviction under Section 307 of imposed upon The accused/appem senfenced To The period already While mainfaining fhe I.P.C., sen‘renoe of life imprisonmenf m1- is sef aside and insfead Thereof he is for‘ihwi'rh, unless required i-o be d .mdergone. The accused be se'r a'r liberfy Sd/— Acting Chief Justice j l ed i0 The period already undergone. is allowed in part ‘efained in any ofher case. / Sd/- SUNEKUMARSINHA Judge @yi/ wyfl body where the injuries were inflicted the crime, sentence imposed upon the P.T.O.