XI-HC-78 KFtTCfT 8rR 3^T •<<|i|ici-t|, aifly'is, (sidi*iy ^ .^r-s:.A^10>.^^.. ^. 201 ii'ffi E.I K 3ii^i 4ac»>(ll,ct?jsi^ff) an^r^fqTR; (CT'an^TgiffR; ?TtireT^f?(T3n^r <oi<<f<i41-( KiHiiT^'Tst<3 <fSi^i< ^3:ri^q'sn^r e*& ^.'!:S g-S;h&d.-? "•^i.i 'Gsb APPELLANT: Tanuram, son of Dhanarain Kalga, aged about 25 years, Occupation-Agriculture Labour R/o Chiagari, Police Station Lelunga, District: Raigarh (C.G.) Versus RESPONDENT: State of Chhattisgarh, Through P.S. Leluuga, District: Raigarh (C.G.) Presenfc Shri R.K. Jain, Advocate for Shri D.K. Gwali-e, Depuly G<\ the appeUant, >vt. Advocate for the State/respoudent. Division Bench: - Hon'hle Shri L.C. Bhadoo Hoa'ble SSusi Dhireadra Misiua, JJ. ORAL JUDGMENT (Delive^•ed on 16-3-2007) L.C. Bhadoo, J. This appeal is direct^d against the judgnient of conviction and order of sentence dated Additional Sessions Judge, leamed Additional Sessions for cominission of offence 5th December, 2000 passed by fhe 2nd Raigarh m S.T. No. 146/98 whereby Jlldge after holdiag the accused giulty under Section 302 of the I.P.C., for coiniDittmg niurder of Satitarain, sentenced him to undergo imprisoninent for Kfe & to pay a fuie of Rs.500/-, in default of payment of fine to ftuther uijidei^o R. I. for 6 inonfhs. P.T.O. i^- XI-HC-78 sn^r w K-ilch rW3{R?Tsht(iqi •-'^ 1S31I»» 73( "l||qi(-1<<, »Tfl'M'16,RfdHy *1|t1WI ShHlth ^ 200 3TT^?T4ath (l^t^^'T) ^Rnwnfsa'sn^r •^ prosecupon Case of fh.e (PW-14) was niarried to acc} the night of 3-5-98 when fh^ soinethuig lascivioiis belwee^: At fhat time, he was canyi[i Saniyaro Bai wifh Lathi. Saniyaro Bai held Lathi, assaulted her 2-3 tiiaes. deceased with saine Lafhi ocl Bai ran away, Thereaftej Santuram. on his head. S; ecu^ion, in brief, is that Saaiyaro Bai (ised Taiiurain. At abont 7-8 p.in. in accused reached on the spot, he saw Santuram and his wife Saniyaro Bai. nyi^ig Lathi in his hand. He assaulted 1^/hen he atteinpted second assaiilt, ho\»|'ever, the acciised snatehed fhe same, T[hereafter, the accused attacked the his head. In the iiieautime, Saniyaro -, the accused repeatedly attacked ^niyaro Bai disclosed the fact in fhe hoiise of Bhagtu. The accu| anift scrttuni Lathi chopped his penis The accused fhereafter wefat villagers was going on. In ti^at saw soniething lascivioiis ^) conimitted inurder of Santui chopped his penis and Thereafter, PW-3 PUakram| deceased. Santram gave m.e) F.I.R. Ex.-P/l was registeri( place of occurrence. He pr^ wrapper ofTopaz blade, clotlties and plain soil from. the pla(| piece of scrotiim aad piece lying at some distaace. Aftei] ^)1<|(<'|41-< WRfl ff te^t <|a|fri;l< ^3rf^PT3TI^T .ed after attacking the deceased wifh right side of scrotam ^vifh a blade. to the village where m.eetuig of ineetkig, he disclosed that when he, >etaveen his -mfe and Santurara, he •am by attacking with a club. He has He shcnvn fhe Lafhi to thein. hiformed faaulv nieiabei-s of the ^g intiTnation Ex.-P/ 16, based on fhat •d. The Investi^atmg Of&cer left for 'pared site plan Ex.-P/9. He seized ofthe deceased, blood stained soil \.e of occurrence. He also seized the |of penis under Ex.-P/lO which were giving notice Ex.-P/3 to the Paachas, P.T.O. XI-HC-78 3T1^T <»>T f?-IW (TaTTSn^Tsblich '•^•^stSt:ff ih ••:. !?KI!!!3s'!§a,. 3^ •^l'illd'y, tfiflu'KS, Rlrtiyy ^ *<1^^1 SfrRI^) ^ 200 3TI^?F'ra^? (yt^q^iT) gTBTgTBlscfsn^r . -~3 •p/^ Lelbn he prepared inquest Ex.-l bodv ofthe deceased was se) Govemment Hospital, conducted postDiortjem. aad •t}. Seized articles were sent ''forl Science Laboratoiy under was received. PW-2 TilakTE|in Ex.-P/S on beihg produced were seized under Ex.-P/6. yv on the body of the deceased. The at for post-iiiortein examiaation to the tga where Dr. R.S. Upadhayay )repared postniortein report Ex.-P/14. cheinical exaaiination to fhe Forensic ;x;-P/21 from where report Ex.-P/24 Ltn, sub inspector, seized Lathi under Iv the accused. Clothes ofthe accused 8x After conipletion of th^ ui the Court of Judicial Mas tum coniinitted fhe case t4 where leamed 2nd Additional trausfer. . The prosecution in accused exaiained 20 witaej recorded under Section 31: inaterial appearing against Vps aairaosily witnegses have d( stated fhat on flie fateful da\ at Barkaspali along wifh his brofher-ia-laws place. Nex^ came to know about fhe d( falsely impUcated ia fhe cru4e fhe effect that he came to thelr ^iNrfift.T WRff ff fei^ (f^reZTC i;3lR|IT3I^?T investigation, charge sheet was filed istrate, Ist CIass, Gharghoda, who in fhe Sessions Judge, Ra^arh, froin Sessions Judge i-eceived ttie case on QWer to estabUsh charge against flie ises. Stateinent of the accused was of the Cr.P.C. ia which be denied i|im. He has stated fhat on account of ^posed agauist him. He has further he went to his brother-in-law's place wife. He stayed in the night at his day moraing when he retumed, he tath. He is innocent aad has been He examined DW-1 Dukhuram to village for dinner. P.T.O. .iB. ^saittss XI-HC-78 sn^T^Tfq^i?; <W 311^1 sbt|i< 'sassi!S3s 3^''qT2TT5TO, aTfl^'lfi, [sfcflU^< u *11H^rT sh*<|ch ^ 200 3ll^,'l Msicb (I^3^T) ?T(iTW:(if?cT3n^r Leanied Additional S' of the respective counsel c< aforementioned. We have heard Shfi ShriD.K. Gwalre, Deputy G The hoiaicidal death PW-16 Dr. R.S. Upadhs conducted postniortein on[ followiag iiijuries:- (1) Incised wound ha^ (2) Incised wound in of scrotum.,. (3) Lacerated wound Wonnd was situal (4) Lacerated wound (5) Right and left t^ bone was also fra|i of the scrotum. ws The above injuries w| death was coina aad heat nature. Apart froni tha^ confession before PW-2 Titi ^rafesfN'iirqriY ff fei^l'(RRZR ^sri^iTgn^r sssions Judge after hearing arguinents linvicted and senteaced the accused as !.K. Jam., coiinsel for the appeUaat aad ovt. Advocate for fhe State/ respondent. )f deceased SantuTain is not in dispute. 'sy has stated that on 5-5-98 he the body of Santuram. He noticed ing 4 cin circuniference on fhe penis, fhe size of 10 cin x 8 cin over right side ai the size of 10 cin x 2 cia x scalp deep. •d over froiit portion of scalp, the size of9 cin x 3 cin x scalp deep. niporal regioa was fractured. Frontal ;tured. Penis was chopped. Right side found chopped. 're ante inortem. in nature. The cause of iajuiy. The death was hoinicidal iii the accused ruade extra jlidicial akiain and PW-3 Pilakrain. In view of P.T.O. XI-HC-78 an^TiiiTf^TW tW3TI^T3iITR; i-K- T^ '^WIVf-'i, Sif\W16, (s|dl«y *11*<WI sh*11tb ^R; 200 \ 3TI^?T ira^ (l{S[fgg^T) s^ciTWHfN'sii^r -s the above, it is estabUsh^d hoinicidal in nature. As far as uivolveraent question is concemed,'in evidence. The case rests on jiidicial confession inade by PW-3 Pilakram. • ofthe accused/appeUaat in criine ia ti|iis case, fhere is no direct or ocular fhe.circuiastantial evidence i.e. extra the accused before PW-2 TUakrain and Learaed counsel for perusal of e\ridence of P^f regarding time and date of fhe accused, as also Q pro; that the accused m.ade persons. e^tra On fhe other hand, siipported fhe judginent of ft^ ippreci^ite In order to appreci^ counsel for fhe accused/ap^ PW-2 Tilakram, who is viUas; before the day of his eviden<j was ineeting ia the village i| and Tendu Patta leaves. Nafhthuram, Sukhau Rain tune nieeting was over, the coininitted niurder of one hiiu, to whoru he has inurd^red wifer.ft-T irfflcff ff te^t (Rre?R: ^srf^lTTSn^T that death of fhe deceased was the accused/appeUant argued fhat r-3 PUakram shows contradictions the extra judicial confession inade by .ecittion has not been able to establish judicial confessioa before fhese leakned counsel for the State/respondent [e trial Court. d/apjpeUaut ila arguinent advaaced by leamed we have perused evidence of ;^ Kotwar. He has stated fhat one year [e at about 10 p.in. in the night fhere connectiou wifh Raiuayan fanction tbat nieeting, Pilakram, Janakrain, other persons were present. By the laccused came aad said fhat he has j^erson, on which they inqzured froia t, he replied that he has niurdered Illl afad P.T.O. XI-HC-78 sn^r «BTfew aw sn^r aiHw ..^..K^Sr T^ -^WW^, tSn!\W<a, Rlcll'Hy t<I^WI a>KI<sb WT 200 3TT^Tia<*i (>icii3si<<ff) ??HTWtrf?(T 311^1 < Santulram te of Santi]ir^iu tbe Sauturani. Thev farther indi has niurdered hini, he repl^E between his wife aad Nathfhulal that 'is why Thereafter they left forj)laoe iajuries on the head were chopped. After leavia.^ with Santram and informed. The wrapper of tb^ fhe scrotuia were lying on \vitaess, defence has not tj which discredit evidence ol accused had not inade Panchayat or extra judicial Moreover, evidence of this disclosed that he has left for place of occurrcnce, lying on fhe spot. Even par^ confinniag about the extr^ accused, fhey went aad lodg confession is con'oborated witaesses. PW-3 Pilakram ha|s stated that the accused inadf Nathfhuram, Sukharuram, father of the deceased in ord efedra coininltted and giandfather of Santu ^Ncpft-T wERrr'? tefr rfSRzre ^3rf^lT3TI^T [uired irom. the accused as to why he [ed fhat he saw soinethiag lascivious near the heap of paddy straw of has miirdered hun with Lathi. bf occzuTence aad saw fhat there were Penis and scrotuin of Santuiain vfllagers for guarding body, he along ~a^o. went to the poUce station and blade, part of the penis and part of spot. In cross-examination of fhis |een able to eUcit aay circuinstance fhis ^vitaesses or shows that the judicial confession before fhe c|onfessioa was not voliuitary aad true. ^'titness shows fhat when fhe acctised inurder of Santurain, aU of fhein |they saw that body of Santuram was of scrotuin and penis was cilt. Afiter jzidicial confessiou inade by the ;^d the report. Therefore, extra judicial by the ground situation seen by ia|s corroborated the above evidence aad extra judicial confession before him, ^ilakrain. They went to the house of (|ler to inform. him.. Thereafter, father w|ent to the place of occurrence. They P.T.O. XI-HC-78 W^TWi^-TT?; (T'in'Sn^Tsb^icb •^^^^ fc':. 3^ ^WM^, ®Tfl<H'16,Rldl+l^ ^ lfTffcTT?frqi^> ^R; 200 3TT^?T T3W (y|f^s)^Sf) s^crran: ¥ifNsn^r •-' i — were at soine distaace. SisN: that Taniiram has beaten hi( to her house. -. TaauTani iafonned thenl fhat he saw •t}- and Santu near fhe he&p disclosed fhein that apart S[ has also assazdted his wtfe. jr ofTaniu~am.'s wife also disclosed him wife, fherefore, he has coxne runniag wfiile inaking extra judicial confession ionietlung lascivious between his wife c)if paddy straw of Nathfhu. He also hoia coininitting niurder of Santu, he leahied Whfle drawiag attentic^n evidence of fhis Mritaess, that this witness has stateil hours in fhe Monday nigh^ therfore, fhey were not BI the| of fhe Court towards para-5 of tfae counsel for the appeflant argued ^ fhat they retumed at about 12.00 Barat went on Sunday inoraing, village in Siinday night. patt tlie But, we do not find ai] I'easoa that in the latter stated that he forgot to teU ti Taaurani cried on Mondav n: ininor contradictiou. On contradictions are likely to fhis groiind, evidence of Moreover, evidence of fhis wi of PW-2 Tflakram and these witaesses, defeuGe circiitastance which niakes or untrustworfhy. Therefore estabKshed that the acciised Panchayat in the presence o grou4d 4il'i<irl<fl'l ^IKdTifte^KRlWK ^srf^trSTi^r ty siibstance ia fhis arguinent for fhe of fhe same para this witaess has day, therefore, he is not able to teU |ight that Sautarain has died. This is a ^ccount of passage of tiine, such l|ippen about the exact day. Solely on this witness caanot be disbelieved. Itaess is corroborated bv fhe evidence situation. IQ cross-examuiation of (has not been able to eUcit any dvidence of fhese witnesses unreliable in view of the above discussion, it is inade extra judicial confession before PW-2 Tflakram aad PW-3 Paakram, P.T.O. XI-HC-78 3TI^T ?iT RRT?; awsn^TCTW W-Sss3S -yw^y^ 3ST -i-IWMf, 9-^W\f,, Rlrtiyy tTmc'TTSft^l* ^ 200 3TT^r,ira^ (^gi^g^r) ?RITW:^ri?(f3TRRT that confession was voluntalry evidence, involvement of ttie established. Leamed counsel foi;,th|i the accused saw his wife position, the accused lost h( hita, in a heat of passion he| wife and thereafter the decel under Exception I of Sectio^ uitder Section 302 of.fhe acciised. accused/appeUant argued thatwhen bid the deceased in a coinpromisuig is self control, fhat incident provoked attacked, ia fhe first instance, to his ^sed, hence act of the accused coiaes 300 of the I.P.C., fhercfore, offence [.P.C. is not made out agaiast the On the other hand, supported the jiidgiaent of tt^ In order to apprccisj coiinsel for the appeUaat Tilakram and PW-3 PUak^ categoricaUy stated fhat wh|i confession before Paachayal saw his wife and deceased heap of paddy straxv of Na1 thereafter the deceased wi Therefore, it is adniitted po< wife and the deceased in a deceased. It is but natural, aad his wife ui a coinproinisii|i «bl.ill<-l'ifl-f tTTOrTF ff fS<^[ <lalW;K ^iBTf^HSil^T and truc, therefore, froni the above accused in crune ia qilestion is lea^ned cozuisel for the State/respondent trial Coilrt. |te argument advaaced by leamed ^fe have perused evidence of PW-2 (am. In their evidence they have ;n the acciised niade extra judicial he categoricaUy said that when he ^n a coinpronusiag position near the ^ithu, he attacked his wife first aad 'fQn cliib which he was canying. ^tion that wben the accused saw his [coinpromising position, he attacked Iwhen fhe accused saw the deceased ig position, he lost his setfcontrol, as P.T.O. XI-HC-78 an^r SfiT fs-ira tCT'sn^r gii?R; ^ J;;;.^E:-;' ^^.r:-.^ -1~~.~~~- '3^ "41'iiici'ii, atfl^'iis, Riditiy flTT4^rsb*<|cb ^ 200 STT^TT T3W (yit^q^ff) ?TciTW flfsci'sn^r 3- a resnlt of provocation, he he was canying, as such Exception I of Section 300 our view by the judginent of U.P. V. Lakhml report^d i alttacked the deceased with cliib which act of the accused coiaes under oflfhe I.P.C.. For fhis, we are fortified in of|the Apex Coizrt in the inatter of State 1998Cri.L.J. 1411. Ul In fhe said case also, wife. When the accused cartie foul acts wifh his wife, thi^ between his wife and PW-3 house froin field, seeiag fh4l deraaged, therefore, the acci^sed Section 300 ofthe.J.P.C. a4d offence under Section 304 Palrt als<? In the present case stated that the accused whUd fhat he saw his \vife and fhe therefore, he attacked hun witaesses weut to fhe spot found, even part of penis accused which were lying Therefore, the act of fhe a( Section 300 offhe I.P.C.. He 304Part-I oftheI.P.C.. app^al In the result, the The conviction and sentence wqfepfrr irpRrf ir'te^t (RRZR ^srf^irsn^T thte accused coiiunitted raurder of his to know that one Raoiey had done acciised saw soinethiag lascivious (Ramey) just when he entered the [t act, fhe accused becanie suddenly was givea benefit of Exception I of was held guilty for coniniission of I offhe I.P.C. even tfae prosecution witaesses have inaking extrajlldicial confessioa said deceased in a coinproinising position, n(ifh club which he was canyiag. The \)>'here dead body of fhe deceased was a^id scrotuin was also chopped by the near the body of the deceased. 'cused coines luider Exception I of ts Uable to be convicted iinder Section of the appeUant succeeds in part. jtmpoSed llpon hum under Section 302 P.T.O. XI-HC-78 3^ ^l^lrtf, »T)1<Ti|l»,[slCll'My ^s ^i*ini g^mq-i WT 200 3TT^?f(Rgi' (^cil^ai^ff) STI^TwfN^ tW 3(1^T giITRT »»» ^y^:-^-.^ ~"""\ Barve ??(iTWHf?a'3n^r 1 ofthe I.P.C. arc set aside. Section 304 Part-I ofthe I.P. years 6 inonfhs.- It is stated 24-5-98 thcreby the accu^ed inonfhs. Therefore, we ; already undergone by tuni. ifhe is not reqziired in aay Sd/- L.C.BHADOO Judge 'RPlfepfrT WRff ^' fScS <Rl<-dl< ^; arf^tr 3ii^?r (nstead (hereof, he is convicted nnder p. and sentenced to undergo R.I. for 8 that fhe accused is in detention since has undergone sentence of8 years 10 sesltence fhe accused to the sentence Tfhe accused be set at liberty forthwifh, other case. -——- Sd/- Dhirendra Mishra Judge