i^- I. i.;..^' i il w ESSS li;Sii iili ; ii Ni 'l" r •a9n'ffi'l!T3EIff' •s HI6H COURT OF CHHATTIS6ARH AT BILASPUR &IVISIONBENCH: HON'BLE MR. DHIRENbRA MISHRA & HON'BLE MR. R.N. CHANbRAKAR. JJ CRIMINALAPPEAL N0.1183/01 (Criminal Appeat U/s 374 (2) of Cr.P.C.) Kamal -alias Kanwalsai, son of Sonsai Panika/aged 55 years, resident of behind staff-quarters, Bartunga, P.S. Chirmiri, District Koriya (C6) APPELLANT (In jail) Vs RESPONDENT State of Chhattisgarh, through P.S. Chirmiri, Tehsil Manendragarh, District Koriya(C6) , Present: Miss Sofia Khan, Advocate for the appellant. Mr. Kishore Bhaduri, Addl. Advocate General for the respondent-State. O R A L JU &GM ENT (22nd September, 2009) bhirendra Mishra. J; 1. The appellant has preferced this criminal appeal under Section 374 (2) of the Cr.P.C. against the judgment of conviction andorder of sentence dated 09.11.2001 passed in S.T. No.t53/2001 whereby learned Additional Sessions Judge, Manendragarh, District Koriya has convicted the appellant under Section 302 of the IPC for causing homicidal death of Nandi and sentenced him to undergo life imprisonment and fine of Rs.500/-, in default of payment of fine to undergo additional simple imprisonment of three months. 2. Case of the prosecution, in brief, is that on 4.3.2001 at about 12.00 rioon the deceased came to the house of appellant and consumed liquor with him. There was some altercation between the appellant and the deceased, whereupon the appettant assdulted the deceased by an axe on his head. The incident was witnessed by (Sulabi Bai (PW-2), neighbour of the appellant, who raised atdrm whereupon another neighbour Leelabai (PW-1) reached to the place of incidentand saw the appellant leavingthe place of incident armed with an axe. Leelabai (PW-1) infprmed Babla : 1 :"(PW-3), son of deceased, who lodged report in the police station on the same day at 13.30 hrs vide Ex.P-1. ^SS ^^FFS?^i^^: "f:^is^sais'sissssrr';"• -.-^s®"--' UK B? 11: ;S;Eh ::,l"1i|i: 'l.;'^ :.^c1. i.iiiE1! n i; £S .-^:. i 1 3. buring investi9ation, inquest (Ex.P-2) over the person of deceased was prepared. Dead body was sent for autopsy to Community Health Centre, Chirmiri where br. A.K. Agarwal (PW-7) conducted postmortem examination and gave his report of Ex.P-8. The Investigating Officer (PW-8) prepared site plan (Ex.P-14) of the place of incident. On the memorandum of Ex.P-5 of the appellant, weapon of offence, axe,was taken into possession vide Ex.P-6. Blood stained Samcha of the appellant was takeninto possessionvide Ex.P-7. Weapon of offence, axe, was sent to the doctor for his opinion whg vide his report of Ex.P-9 opined that the injuries present over the head^of deceased could be caused by it. Blood stained clothing of the deceqsed was taken into possession vide Ex.P-11. Seized arti'cles weresent for chemical examination to FSL, Sagar vide Ex.P-12 and the report of FSL is Ex.P-lSin which human blood stains were found on the axe seized on the basis of memorandum of the appellant, apart from elothing of the deceased. 4. After completing investigation, chargesheet was filed in the Court of the learned Judicial Magistrate 1 Class, Manendragarh, who in turn committed the case to tearned Sessions Judge from where the learned Additional Sessions Judge received thecase on transfer for trial. Learned trial Court framed charge under Section 302 of the IPC against theaccused, who abjured his guilt. The prosecution,in order to establish the chargeagainst the accused/appeltant, examined nine witnesses inall. Thereafter, statement of the accused was recorded under Section313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence <& false implication. 5. Learned trial court after hearing the arguments of learned counsel for the respective parties, convicted and sentenced the appellant herein, ds aforementioned. 6. Miss Sofia Khan, learned counsel fgr theappellant argued that conviction is based on the evidence of Gulabi Bai (PW-2), however, she had not witnessed the incident, as she did not disclose before the police in her I diary.statement of Ex.D-l that she saw the appellant assaulting the deceased; She further argued that from the evidence dvailgble on record it would be evident that the offence was committed without any premeditation on the spur of moment due to sudden provocation as the deceased tried to outrage the modesty of appellant's daughter, aged about 16 years, under the infiuence of liquor and in these circumstances, the offence does not travel beyond Section 304 Part-II of the IPC. Referring to the evidence of Ahilya Bai (PW-9), daughter of the appellant, and Leelabai (PW-1), it was argued that the deceased tried to outrage the modesty of-Ahilya Bai. 7. On the other hand, learned ctiunsel for the State supporting the a,. te^SS-iBg?? impugned judgment argued that the dppellant has dealt three fatal blows on the skull of deceased which resulted in his instantaneous death and the trial Court was justified in holding the appellant guilty for committing murder of Nandi and convicting him under Section 302 of the IPC. 8. We have heard learned counsel for the parties. We have perused the record of the trial Court as also the impugned judgment. 9. Homicidal death of deceased Nandi is not in dispute. Even otherwise, from the evidence of Gulabi Bai (PW-1), who has witnessed the incident, and evidence of br. A.K. Agarwal (PW-7), who conducted postmortem over the person of the deceased and proved the postmortem report of Ex.P-8 in which he found following injuries on the person of the deceased and has opined that deceased died as a result of shock due to excessive bleeding, homicidal death of deceased Nandi is established. INJURIES SUSTAINEb BY THE DECEASED: • Incised wound of the size 7x1 cm deep upto cranial cavity, temporal region at scalp. • Incised wound of the size7.2xl cm deep upto cranial cavity, occipital region at scalp. • Incised wound of the size 7.4x1 cm deep upto cranial cavity, occipital regionat scalp. 10. FIR of Ex.P-1 has been lodged by PW-3 Babla, son of deceased, on the basis of information given by the wife of Gama i.e. Gulabi Bai (PW-2) and the appellant has been named in the FIR. ./: / 11. Sulabi Bai (PW-2) has deposed that on the date of incident she was grazing her goat, on hearing cries of the child of appellant when she looked towards the house of appellant, she saw that the appellant was assaulting the deceased with an axe. On hearing her cries, hersister Leela came there. She also heard the appellant saying that he is going to police station. She further stated that she saw thot the appellant was holding blood stained axe. In cross-examination she has been confronted with her diary statement of Ex.D-1 in which the fact that she saw the incident is not mentioned, howeyer, sheclaimed that she has narrated the same to the police. Versipn of Sulabi Bai (PW-2) is duly corroborated from the evidence of Leela Bai (PW-1), who reached on the spot on hearing shouts of Sulabi Bai and found the appellant standing near Nandi holding blood stained axe. In the cross-examination, this witness stuck to her claim. 12.Ahilya Bai (PW-9), 16 years old daughter of the appellant, has also admitted that on the date of incident at 12.00 noon her father and the deceased were consuming liquor in her home. However, she has further stated that when her father left the place of incident to attend the call of nature and the deceased tried to outrage her modesty, then a third person assaulted the deceased with an axe. She has been confronted with her diary statement where she had stated that her father assaulted the deceased with an axe, however, she has denied having made such statement to the police. 13. Thus, from appraisal of the evidence of above three witnesses, we are of the opinion that the trial court has rightly reached to the conclusion that the appellant assaulted the deceased on his head and caused three injuries which resulted in his death and rightly disbelieved the version given by Ahilya Bai (PW-9) in the court. 14. The question for our consideration is whether the trial court was justified in convicting the appellant under Section 302 of the IPC in view of the evidence available on record. -L.^^-Kt^^-^ .-.;g[1:^.:^S;^^^ ^^^•ff;1^'^^^' •-5 15.From perusal of the evidence of Ahilya Bai (PW-9) as also her diary statement of Ex.P-15 it appears that quarrel between the appellant and the deceased took place as the deceased made some indecent advances towards the daughter of the appellant. The version of Ahilya Bai (PW-9) in this regard finds corroboration from the evidence of Leelabai (PW-1), v " who has deposed in Para-t5 that she learnt about the above fact at the time of lodging report. Thus, considering the totality of circumstances that the appellant and. the deceased together consumed liquor on the date of incident and the incident occurred in the spur of moment due to sudden provocation, we are of the opinion that the trial court was not justified in convicting the appellant under Section 302 of the IPC, as the offence does not travel beyond Section 304 Part-II of the IPC. 16. Accordingly, we partly allow the appeal filed by the appellant. Conviction of the appellant under Section 302 of the IPC and sentence imposed upon him under that section are hereby set aside and he is acquitted of that charge. Instead thereof, he is convicted under Section 304 Part-II of the IPC and sentenced t6 undergo R.I. for 10 years and to pay a fine of Rs.500/-. It is stated that the accused/appellant is in detention since 7.3.2001 till today, therefore, he shall be entitled for set-off of the above detention period against the sentence imposed upon him. Rashan/- Sd/- DHIRENDRA MISHRA Judge Sd/- R.N. Chandrakar Judge