.-—•• ,> Crimiaal Appeal No.567 pf 2003 it !1 11; Darakhu alias Jorandiha, s/o Shri Suklihu Yadav, aged about 32 years, R/o Vfllage Sarasmal, Joraada Jharia, Police Station Pharsabahar, Distt.' Jashpur (C.G) «( /•'•State of Chhattisgarh., fhrough - P.St- Lailunga, District Raigarh, Chhattisgarh HON'BLESHRI JUSTICE SUNIL KUMAR SINHA^JJ. Miss Poomim.a Singh., counsel for fhe appeUant. Shri.AMifl Mishia, Paael Lawyer, for the State. ORAL JUDGMBNT (10.01.2008) .Tfhe foUowiag judgment offheCourtwas passed by L.C. Bhadoo, J^ [I) This appeal is directed agaiast fh.e judgment of conviction a&d order of sentence dated 11.2.2003 passed by IV Additional Sessions Judge (F.T. C) Raigarh (C. G] ia Sessions Trial. No.99/2001 whereby the leamed Addl. Sessions Judge, after holding'the accused appellant guflty for conunission of the offeuce u/s 302 I.P.C. for coraiiut'tiag m.urder of Navarataa Baiga, sentenced him to uadergo imprisonment for life aad to pay a fine of Rs.500/-, iu defanlt of paynient of fiae to furfher undergo R.'I. for 1 luontfa.. (2) The case of the prosecution, ia brief, is fliat Jhuiuauni (P.W.10) is' fhe wife of accused appellant. Bihani Bai (P.W.12) is wife of fhe deceased Navrataa Baiga. On 10.3.2001 atabdut 9 p.ai. in the night, Kedamath (P.W.2) lodged a report,to the effect that at about 8 p.m.., when he was at his resideuce, Jageshwar (P.W.ll) son'of Navratan came to his house and informed that his ^Sther Navratao. lias expired, fherefoic, he shouU visit his house. ii.'BKll ?;'":mns?®?.Rt::j7s a.^.T^'SZt32?^S£;S^{^^'•'^^•^j'.'^i^^^i !|!ii On his caU, he went to the house of Navrataa. When he was goin^ .to fhe house of Navratan, on the way in front of.house of one Chaiider, vfllage Kptwar Shankar Sai Chaulian niet him. and mforoied that ia fhe lastiiight Navratan Baigawas taking tfae wife of accused Dihakhu Yadav to his house and on the way near Nahardhoda, Navratau after fhrowing her on the grouiid, coininitted sexual ro.tercourse wifh. her, at tfiat time Dflrakhu reached to the spot, seeing Navrataa and his wife m. a coiaproinisiag positiou he started attacktug bofh of fhem. wifh club. Receiving .this jepoit-t (Ex.P.2-A}, the Station House Ofiicer, PoUce Station Lailuaga regstered tibie first iaibmiatioa report (Ex. P-2) and Merg intiination was also given by Kedamafh. The iuvestigatiag officer left for the scene of occurrence, prepared the iaquest on tlie body ofNavrataii (Ex.P-6). Site plan was prepared under Ex. P-7. The plaia soil and blood stained soU were taken into possession froin fhe place of occun-ence. The broleen pieces of t- tv glass baugles of Jhurununi w^Atseized under Ex.P.8 and fhe saraples'of bsmgles of Jhuninuni was seized under Ex.P.9. WhUe in poUce custody,. the accused gaye memorandum Ex.P.ll regarding bamhoo club which was used for attacking Navratan. and Jhuamuiu. aad that Bamboo club was seized under Ex.P.10. The body of Navrataa. was sent for postinortem exainiaation by tlie Doctor. P.W..16 Dr.S.N. Upadhyay,who after conductiug ftie postaiortem. opiued fhat fhe deafh was resulted by chest iujuiy leading to pleural and lung iajury causing tension ia pneinofhorax, which resulted mto respiratoiy arrest aad deafh is hoiuicidal in nature. He prepared the postaiortein report Ex.P.22. [3] . After cQinpletion of the iavestigation, charge sheet was filed in fhe court ofJudicial Magista-ate First Class, Gharghoda, who io. tum coinmitted the ca.se to the Sessions Jxidge, Raigarh, fi~oin where the leamed Additional Sessious Judge, received fhe case on traasfer for trial. (4j The prosecution iii order to estabUsh the charge against the accused exaiuiaed t6 wituesses. Ttte stateinent of fhe aecused was recorded u/s 313 Cr.P.C. ia which he dejaiedithe inaterial appeariiig agaiast him., stated that he is innocent aad has beeii fglsely iidplicated in fhe erime. , i...r;'S^S3.'SI gaSS.^iEBES'..'S!i:SSiTSSSSyi t: (5) We have heard Miss. Poomima Singh, couitsel for the appeUant aiid Mr. Akhil Mishra, Panel Lawyer for the State. (6) At fhe veiyoutset, learaed counsel for fhe appellanthasnot disputed fh.e hoiaicidal death of Navrataa. Moreover, fhe accused made extra judicial CDnfession before P.W.5 Dileshwar, P.W.6 Paachan, P.W.7 Lala Ram, P.W.13 Shaakar Sai (Kotwai) aad P.1V.14 Chatur. AU these witnesses have categoricallv stated fhat fhe accused inade extra judicial confession before theni fhat he attacked the deceased, The above circumstantial evidence is <i . _ _.__ __ .. .;_.__ corroborated by the evid^ace of Dr.S.N.Upadhyay (P.W.16), who has stated that on 12th ot\.March 2001 he conducfed the postniorteia on the body of Navrataa aad fhere were 7 iajuries on his body. On iu'temal examination, it was noticed that fhe right side nbs of 2 to 4 and left side ribs of4tQ? were foiuid fi-acfured and fhey pierced into lungs. The lungs were fiiU of blood. The injiiries were fatal aad on account of puncture of lungs, the deceased died. The iajuiy ou the chestwas fatal aad on accouiitbf respiratory arrest, he died. Accordiag to hiTn, fhe nature ofdeath was hoinicidal and his report is Ex.P.22. Therefore, tu v-iew of the above circumstantial and inedical evidence, it is established that - the death of Navrataa is liomicidal. As far as the coiaplicity of theTaccused ia crune in. question is conceraed, fhere is no ocular or direct evidence m. this case. The conviction rests on the circuiastantial evidenee that is extra judicial confession raade by fhe aGcused before fhe prosecution witnesses nam.ely P.W.5 Diieshwar, P.W.6 Paachaa, P.W.7 Lala Ram, P.W.13 Shaakar Sai, Kotivar & P.W.14 Chatur. These witnesses have categorically stated that when they went near fhe place of occurrence where Navratan was lyiag dead, the accused was also standiag aud on enqulQ', he confessed thatwhen he saw his wife Jhuiununi ia a coiuproiaisuig position with Navratan he could not tolerate aiid he attaclced both fhe deceased and his wife. In. fhe cross exam'uiation af these witaesses, the defence has not been able to elicit any circunistance, which laay discredit the evidence of fhese witaesses. More over, the injuries of Jhiiiunuru has been exaiaiaed by Dr.Dr.Shailendra Upadhyay (P.JW.8), who Iias..stated that fhere were injuries on her body aad ithe injuiy .ta^im-u-S^SS^SS » report is Ex.P.13. Therefore, the above medical evidence fuTfher corroborates the extra judicial confession m.ade by .the accused, appellant before fhese witnesses. Therefore, tiie coiaplicity of the accused iu criine io. question is established aad to that extent we do uot find aay uifinnity or iUegality in the judgment of fhe tnal court. Learaed counsel for fhe appeHaut argued that even if the entire case of prosecution is accepted as it is, fhe offence again.st fhe accused does not ta~avel beyond sectioa 304 Part IIof I.P.C. because since fhe wife bf a6cused was not in her resideace, so fhe accused left the house in sear&h ofhis wife. He saw fhe deceased aild his wife Jhuninuni ia a couiproillisiug position, he could not tolerate aiid he became angry seeing his wtfe ia com.proniisuig position with fhe accused. Therefore, ia a fit of rage, he lost his teniper and attacked his wife as also fhe deceased smd fhe deceased died. Hence, the case of tlie accused is covered uader Exception 4 of Section 300 IPC. (9) On the. other haad, Shri Akhil Mishra, Panel Lawyer, supported the judgment of fhe trial Court. The argum.ent advanced by leamed counsel for fhe appeUaat fiads support froin the inaterial avaflable on record. The proseciitiou witnesses namely P.W.5 DUeshwar, P.W.6 Paachan, P.W.7 Lala Ram, P.W.13 Shaakar Sai, Kotwar & P.W.14 Chatur before whoin fhe accused niade extra judicial Gonfessiou, have categorically stated that when they enqiiired froia fhe accused, at fhe very first itistaace, he disclosed that when he saw his wife aud fhe deceased in a coniproinisiag position, he became fury, lost his teniper and attacked his wife as weU as the deceased wifh 1athi. There is nothiug on record to .show fhat ttie accused attacked tlie deceased with aa iatention t6 cause deafh because the accuseel saw his wtfe in coiapromiisiug position, all of a sudden ia a heat of passion, he attaclied the deceased which proved fatal aad he died, but looldug to tbe luaniier ia which he attacked fhe deceased, it, would appear feat he was kuowiag that by attackiug fhe deceased wifh lathi on his chest aiid other vital parts of.-fhe body, he wfll ."likely to.cause deafh. Therefore, fhe offence against accused does ^npt travelbeyond section 304-11 ofI.P.C. Bs>: /Rao/ (11) In the result, the iappeal succeeds. The conviction and. sentence imposed upon the appeUaat are set aside. Instead fhereof, he is canvicted u/s 304 Part -II ofI.P.C aad seatenGed and sentenced to ui\dergo R.I. for 7 years. It is stated that the accused is in detention since 13.3.2001 tfll date, fherefore, heshaU.be entitled to set off for the above detention period agai&st fbe sentence imposed upon him. y-\--y^^ Sd/, L.C. Bhadoo Judge Sd/- Sunil Kumar Sinha Judge ••-I ^rM ^:,J,.'.*^,,.. ! • •• ''•. •