—78 ^n^T^'f^rw TT^TT 'STT^T 5b^ict> 'SFSSf -q|q|0^, ?$Tfi^<|^, fe|^W^< ^Wv[\ **1|cb "W^ 200 3:IT^?T X(5^ ( 4^^^) ^^TW^rf^T^T^r &IVISION BENCH: HON'BLE MR.&HTRENDRA MT5HRA HON'BLE ^R. T.P. dHARMA.JJ CRIMINAL APPELLASSTTS (In jail) year^ 3. Sahdl year^ 4. year^ Ail resid^ Basna, Di^ Vs RESPONDENT The 5tat| Magistrat| Present; Mr. R.P. Tripothi d(Mr. K.K. Pande^ h\r. Ashish ShukSo, Additionai Pi obl^t<rt<i1l ^H^T^I^^l <rsi<^i< ^3TRR3?n^T APPEAL N0.73T/2002 1. Basu^ev Rciwat, 5/o Manbodh Rawat, oged about 60 y^ars, occupQtion -Idbourer 2. 5uda|t Rawat, 5/o AAonbodh Rowat, oged 65 , occupation-iabourer ^v Rawat, S/o Manbodh Rdwat, oged 40 }, occupation-iabourer M<ih<^dev Rowat, S/o Manbodh Raivat, aged 46 I, occupation-iabours" residel'it of viii^e SankrG, ThQna-Basna, Tahsii- Di4f*rict-AAahas(2mund (C.&.) ^ of Chhattisgarh, through'the District ^ ^ahoscimund (C.&.) , Adyocates forthe appeliants. ic Pro^ecutor for the Stote. ORAL (4th Per Dhlrendm Mlshra. J: This appea! is directed ag sentence dated 19th June, 200^ Judge, Mahosaniund in Sessions| Sessions Judge has convlcted th4 of the IPC and sentenced each Rs.1,^0/, in defauit of paymenf JUD^MENT ?ebruary, 2008) xinst the Judgment of convictlon ond order of i passed by ieQrned 1 Additionai Sessions Trtai No<319/01 whereby lewned Additlonaj appeJlants under Sections 302/34 & 323/34 of them wlth $lfe impri-sonment ond fjne of of flne to further undergo RJ. for three 75ST ^|^|<^-q, ^Tflw^, ic)^|^^< ^ ^TT^T^ ^i^ TT^T ^3TT^^ $b^Jch ^l^dl sbNI<=b ^ 200 3TT^?T ^[^K (^lc<<^) '^RITW TTitU 3?^T —2-. months and RJ. for one year r^spective!y» Bath the sentences hove been directed to run concurrentjv. Case of the prosecution, |n brief, Is that compialnant Mehtaru iyw-2) and persons are real un^ie and nephe^. ^ case pertalning to pcrtitlon of the land i^ pending bet^een th of the compSainant party by the vi?hen the complaJnant pcrty was ^m ond m qucstion ^a^ glven in possession ITehsiidar. On 23.6.2001 at cfcout 12.00 noon |p!oughing the fieid mth the heSp of rented tractor, the accused persons ar^ed with axe & lothi reoched the field and stopped the tractor driver fro| complainant Mehtaru as Q result| mother of comploinant, ^hen trie^ preparea5 m the presence wi ct)l^(<rt<fl'rl iTTR^f '^\fec3)> ipal^K ^•^fRpT^TT^T ^ ploughing wd in thot proeess they beot of whjch he fell on the ground. Sukanti Bd, to sove her son, they togetiier ossauSted h@r and her death. On the r^port of compidnant Mehtaru O^W-2) offence under Section 324/34 of 3PC w^c regi^tered against GJI the Qccused persons, thereafter, on the basis of infor^QtJon gjven by Ramesh (PW-5), another son of on 23.62001 ot 16.0p hr^ Dehati merg intimatton of ExP-8 was registered regwding of St|<antj Bai. Durlng investigotion, inque^t (Ex.P-4) over the body of Sykantin Bal body of was for autop^y to ^ovemnient Hospj-^a!, Bcisna where Dr. N.K. Agar^d ^W-3) conducted postmortem and gwe ^iis report of ExP-3. CompiaJnQnt Mehtaru wa^ aiso sent to Community Headti C4 11 and his medico !egal injur/ re^rt is Ex.P-12, Weapon of offence, w.e, three jn numbers and one lathi, was ntre, for mcdicoE examinotion vide Ex.P- taken jnto on being produced by 3^5f '^1^1^<1, ^TO'y'KS, fs|^l<1^< ^l^dl *^l<=b ^ 200 ^T^T ^ f^^ich TT^T 3TT^T $b^icb W^ J^ (|^f^<^T) '^TR:R ^if^T 3^?r '^ appellant Vasudeo vide seizure ^ container containing 3T??7 ?T?T, lylng at theplace .of indde^t Investigating officer prepared f sent for chemicQi exominQtion tt report of FSL dated 12.2.2002 j^ After compieting invest appeiiants herein in the Court ^•ho in turn comniitted the case WQS received by tearned 1st Addi-t prosecution exomined nine ^it|F appeiiants was recorded under ^ evtdence appearing against then^ comp!dnant are the members o| Sand ^ith them ond becerase ofl appeSlants hme also examine^ Bhagatram, as Defence Witness However, jearned Addi| orguments of Searned counset fort appeiiant, as aforementjoned. Leorned counse! for thl appeljants is based on the state^ <=bi^I<i4l'i ^i^<?iT ^t^st <F3i<^.i< ^3?rRma?rT^r ^ejno of ExP-5. Blood stoined soii & pldn soli, pla^tic pGcket contdnlng 1^f ?T?r and one axe were taken into pssession vide Ex.P-6. "he spot of ExP-7. Seized articjes were ) Forensic Science Laborotory, Raipur ond the avdSable on record. gation, charge sheet filed against the ?f Judics'a! AAagistrQte 1st Class, MQha^amund, 'o learned Sessions Judge, Ralpur esnd the •ional Ses^ion^ Judge on tran^fer for tria!. The in a!i ond therecrfter, statement of lection 313 of CrP.C. in ^'hich they denied the in the prosecutlon case and that the f their famiSy, there wos a dispute regwding this they have been falsejy impllcoted. The a defence ^ltness natTieJy Harl, son of Mo.l. tional Judge after hearing the respective par'tie^, c^onvicted A sentenced the B appeJSants oirgued that conviction of the ^ent of Mehtoru (PW-2) A Pamesh (PW-5), who ^^-'" ^J^ "'•:^ ^r.^^^ -^ ^e 3:^T <^l^l<ri>^, ^Tfi^'Ko, fs|<ri>t^^< *41^dl *^(ch ^ 200 3:n^T?^ f<Tl[ch T[STT isTT^T $h^li<=h < 3TT^ST TliTSF ( 4^^^) ^^R ^rft^ ^T^T -4- wc of the and as| VersEon of compiQinant AAehtc^ contradicted froni his PIR of ExPl by the oppeJSarfts on his mother, h^wever, in FIR the fact is missing. It is undlsputcd fact thot the incldenti possesslon of dlsputed agriculturc thot the dppeljants m of the land In questlon and there on ongoing dlspute beti^een the pa cotTiplainant pwty forclbly pjough* property, appellant Vasudeo done trled to intervene, ^h^ Complalnant sustained only one inj' he ^as Qsserulted b/ ail the expSmGtion of non-exomincrt'ion o^ driver- of the tractor namejy ©ync^ the prosecution has not come up ®bi^f<n4ii*4i*i<:ii* '^\felst <nJ<^i< i73tRP:T3^^T such, -rtiey ate hjghly Interested i^itnesses. u given before the tria! court stonds -2. H@ has cldmed to have the as^Gults occurred because of the djspute reSating to land. There is evidence avaiiabie on record ^tjes mth re^pect to the pssession. The >.d the field and in the exerdse of right of stopped thc compiaincint froni pjoyghmg the field and in that process there ^s scuffie between them and when the feS^on the ground cind sustdned injuries. ir/ over his heod though he h<^ cSGimed that |accused persons ^lth axe, ho^ever', no corresponding injury was found ^n his person ond thus, his version is aiso contradicted from the mcdica! €vi|Sence. Indepcndent %1tness presence i^ mentioned in the FIR i.e. Sadariand, has not been examlned and there is no that wltness. He furtiier argued that the Singh has also not been excmilned and thus, l^jjth the clean hands. Lostiy It was orgued that the incident occurred in the ^pur of moment and even If the version of the compjainont is belleved in its ent lety, it is evident that assaySts wwe made from the bockside of oxe, which |s indjcotive of the fGct that the ^peljcints ^ ^' 1 w s >^ ^ ^? _/' .^ vs^..^' ^' ~^3^^ 3^' ^(1^10^, y>T{)^l<S, fc)<7i)|^^< ^TI^F '^t f<Tli<sh TT8TT 3TT^?T ^RNp <. ^ll^dl tb^lcb •••••—•••—•"—•••••—-•••••——••••-^ 200 3:n^r XI^RF (4^f^<^) ^nw^f^^^r -^ cfruse did not hove ary Intention to sustajned by the compldnant wer On the other hand/learnlee supporting the impifgned judgm^ eye^itness, he has promptiy !o<| ofter two hours of the incidentl ond in the said report aSI the of the complainant l^ duly hlmseif sustdned lacerated ^ouhd Other eywjjtness namely Rcrrne^h 4.00 p.m. in which he has aiso n{ above witnesses is duly (Ex. Pm3) according t<| wounds over hcr head/ one ioce^ abrasions on the back. fdur cortroborated We have heard learnctd c| record as ateo the inipugned Judj Honitcidai death of Sukahtj peru^d of the statement of Ramesh ^W-5) css oiso from th^ conducted postmortem over the^ postmortem report of ExP-3 opined that of i-s g| CM^F<rt<fl'l^l^<^ ^* fe^ <P»i^i< ^ ^HTPT 3?n^T deoth of Sukantl Bai, Even the Injuries \€caused by backside of the axe. ^d Additjonai Public Prosecutor for the Stote mt ergued that the compldnont b an injured iged the report In the poiice station i.e. just after escaping from the scene of occurrence, accused pe-rsons have been named. Version from the medica? evidence as he over his ond two sweilings on hls back. ^W~5) has glven merg IntJmation at aboLrt smed a!I tiie appellants heretn. The vcrsion of from the postniortcm report of the vvhlch the su^tdned t^o Sacerated ated vyound on the back of neck and numerous corrottorated iunsei for the appeilants, We hwe peruscd the ment. itl Bd is not in dispute. Even othemlse, from ;ompldnant Mehtaru ^W-25 and his brother evidence c?f Dr, AA.K. Agar^a! yW-3), ^ho ha^ person of deceosed Sukanti Bal and proved the vherein he ha^ mtlced foito^lng injunes and ievou^ injurie-s sustajned by the deceased owr ~r~ 3^T ^1^10-i), ^T{l'y<t<5, (s|<7'>l^^< W^v\[ (b^ldb ^ 200 ^n^r ??T f<ri[<=h ^f^T -STT^T $b^J<=h < 3TI^T X|5(^ ( li^lc<<^ ) ^«iiW^f^a ^n^i —6' her brdrs md the death homB Sukanti Bai was homicida! in natut 1, LacerQted wound on Frocture of rri^idibie aareaof4"x3" 2. Lacerated wound ov^r underlyin9 tone tem^ora! depressed m nature. 3. Lacerated wound on tH© 4. Abrasion over back a1| yerticaijy. 5. Abrasion over back be| 6. Ciotted blood in !eft ebr 7. Ail the injurie^ are an-1 &j{^f Convjction of the oppeSSan^ 25&Ramesh(PW-5). Mehtaru (PW-2) has depojsed for ^owing the fieid mth hls mot| Singh. J^cy were sowlng 3???7 reached there and stopped the ^hlch the trQctor driver storted tractor, Vasudeo as to repiied thot Tehsiidar, Revenue and on thot basis he is ^owing. when he stcrted leavjng, Va^ud^ backslde of the oxe. He ^JQS dr^ <=bN(<y1<fll 'RP^Jf ^f^t <F31^1< ^ 3TRFT 3TT^T cidal in natire, it is e^tabli^hed that deoth of 6e. jeft check of slze 2^u x lli x bone deep. m i@ft. Cbtted blood found ov@r left ch^ek in right occipita! r€.9ion of size ?" x T x and a pcrt of parjetai bone which wos ©Jeft side of nap of neck 2" x 1" x1" deep. C6 !eve! of slze 1" x ^ hor!zonta{!y & 3" x y |ow injury No4 of ^iz©2" x ^". was found. ^i mortem in nature. s is based on the stotement of Mehtaru (PW- Otl thot on the date of incident he had gone icr Sukonti Bai, brother Ramesh <& driver ^una in the fl©Id/athat tim©,Qccused per^ons tractor driver from ploughjng the fieid, on Seoving the fieid. When he reached necr the whose order they ore so^jrig, to i^hich he ilnspector &. Potyjari have effected partition ^osudeo him to cal! the Tehsiidcr and ka Qssaujted on his head and back from the nched in and fe!! on the ground. When 'S^ "41^110^, y»TQ'y<KS, fs|<7i)|y^< (^ W^T^T f^rl[<=h 'cl^TT ^tl^l 5n^li<=b s- •s; ^ll^dl sb*<(<*) '^ 200 ^?T XI^F (<ic<?l<s<<^) ?^TW^f^T^T^T -n- his mother came to ^aye him, dl GM^(<rt<fl'T *ii^<nf'? 'fe^- '^f^^ ^"'stRpT 3TT^T the occused persons started assauiting her a!so as a result of which she sust'dned Injuries over her head as a re^uit of which brain materiGl co.nie out. Sljie QJSO sustained jnjurtes over her neck. His youny^^ brother Romesh (PW-5) hlm, hc?wever, Ramesh fled towcrd| witness has admitted that his fotll standing neorby, they also chased s vi}iQ9€Temrl In the cross-examinotion this ier Manbodh & eider fother Sanbodh reside^ seporateSy, ho^ever, he has ^tat^-d that their holdings were Jointly recorded and they' used to do c^ultivotion J^intiy. SitggestioT-t that there Is partition wlth respect to the lond dtuoted at ^ This ^jjtness hos abo deni'ed ary | situated at Village KurrupQli, H by the Reversue Officers but th^ accused persons cSaimed the lan^ not know as on which part uccu^cd per'son caused injury. T| riSiage Kurrupaii & Sankcra has been denied. knowledge that hls parent had sold the land wever, he has admitted that partition was effected in the absence of accus^d though he has that they were ca{{ed did not come. He has further Qdmittcd that to be their. He has aisc? ^mitted thot he of the body of his mother which Individuu! Lse tractor driver ran cr^oy during quarreS. In paro-13 he hos stated that SQc|QnQnd was not present on the spot, he met Sadanand necr pond where Sadar^ind ^as tdking bath and Sodanand did not ^ee the inddent. Omission in hi^ diQrjy statement (Ex. D-2) regording the same has been polntcd out. Ramesh (PW-5) has dso ttated that appejjonts assaujtecj his brother Mehtaru with axe, he sustdned i^jury' over hls head and both of his shouider-s^ When his mother Sukanti Bai ^ent to separote them, the accused persons 3^T ^WW^, W^\W\(o, fsi^l^y ^l^dl sb^llch ^ 200 3TT^r ^RF (^^<^r) W^T ^T f<rl[ch '<Tsff 3TR^T 5b^l<=b ^«ii^R^f^a 371^1 -^- <^Hf<n<flTi ^i+i<nf ^fe^ <p»|^|< ^^ffim^T^r ossaulted her also with the axe. bock and she feil on the ground. howcver, he tiianGged to flee fr< reprt in the poiice and on the ^as registered. In the c^ros-s-e^ knowledge about pcrtition of the he has denied the suggestlon that| It is true thot detdi of css js missing from the FIR^ observe that the Qppeltants hav^ and in the above report, the c|: persons have csiso assaulted hi^ from there for lod^ing the reporlj. Ex.P-8 and in thls report dso €il| asscrult by them on the persor^ compldnant ^io hod sustained h^ minute detdis of the ctssault In simply because the detaii^ of a| mentloned in the report. Versior| from the statement <3f his brd' Ramesh (PW-5) has been chajlen^ mentioned in the first consideratjon that dehoti merg i^i b^is inforibation |he also sustajned injuries over her head and |He was also chosed by the occused persons, |m there to^ard^ his house. He lodged the ^is of his Informatjon, Dehati Merg of Ex.P-8 |:amJnatlon, this ^itness hc^ aiso denied any |iand ^ituated ot ViliQge Kurrupali. In Para-8 no sooner quarre! begesn, he fled from there. |sau!ts by accused persons over the person of (Ex.P-S), however, from perusa! of Ex.P-2 ^e been named in the first information reporf )mpiaJnant has mentioned that the accused in the fie!d ond he has mQn^ed to flee Ramesh (PW-5) hos given merg intimation of |egations agdnst di the oppellants regcrdir^ of the is present. An injured sad injury by the axe is not expected to give E'he FIR and his version cannot be discorded ^Guits by individuai accused person are not of Mehtaru (PW-2) finds corroboration i'her Rc^iie^i yW-S). However, version of |ed on the ground that hl-s name has not been report of Ex.P-2. But taking into itimation of Ex.P-8 ^as given by Ramesh ^W- mbther ;3^T '<ll<4l0^,y>Tfi<-i'|(S, fs|<>i)|^^< _^?T^Tf^TW ^T8TT 3TR[^T $n<-|jc^ <. HINdl shtljcb 3T^r 'q^? (^f^^yr) ^nw^ltn^n^T "^ 200 °ni^<ri<fl'rl ^w^S ^'f^st ^T^R ^"3TfOT'3TT^T 5) which WGS recorded ot 4.^ p.|ri. on the date of incident itself, his presence on the spot cannot be disputed timply on the ground that hss nome does not fjgure in the first information re| thi^ witness has denied the su^; f!ed from the place of incident, present cst time of incldent. So far as the non-ex.cOTin )ort. Moreover, in Para-S of cro^s-exQmination jestion that no sooner ttiie quarrel begon, he ^hich itself e^tcfoiishes the fact that he was ition of truck driver ©unaSlngh and Sadanand Is concerned, there is evidence 4^^^bSe on record that while quarrel wcss going on the tractor dr'iver fled frojm the pSace of inddent and the version of compidnant Mehtaru glven befot^ incident finds corroboration f^ appeilants were in settled poss^ |e the court that Sadonond did not witness the m the statement of U.P.S. Bhadoriya (PW-9) who has stated that SadanGnd h^d not witnessed the incident. Other wguments advanc^d by iearnedcounse? for the Qppellant lliot the ssion of disputed land/the complainont party were forcibly ptoughing the fie^ ond th€refor<3, in their exerci^e of right of propcrty, appeiieint Vosudeo tri^d to ou^t the comp!ainant and his mother from the fieSd is concerned, from p^ (PW-2) & Ramesh (PW-5) it is c| os a matter WQS decided by th^ ;rusal of the statement of witnesses Mehtaru ear that thcy daimed possesslon over the Sand Tehsiidar In their favour and they were given possession by the Tehsiidar. |Howev€r, no document was produced by the defence to estobSish their pos^ssion over the disputed iand and thus, tBt is an csdmitted situation that the incil ptoughlng the field with the tr^ ^ent occurred while the compiolnant party t^ere ictor and the appeSlants ^ent there Qrmed with 3^T •:2n^T^T, ^irftw^, f^rey NWdl (h^|c»» _^^^Tf^rt^ ^T8TT ^ll^l ssD+licb ^ 200 3r^r1^w (1i^^r) ^^TW^f^T 3?T^T ~-?0' deadly weapons like oxe, stoppe^ proces-s they caused injuries overl| numerous injuries over the vita ^rafep'^TTO^f ^fecst ^i^re ^^tRm^n^r them from ploughing the filed and in that Ithe person of complamont and furth€rcaused parts of the person of -t^e deceased and therefore, the argument csdvance^ by learned counsel for the appellants in this regcrd that the incident occurr|ed whlle the QppeSlants had exercised their rlght of property cannot be acce^ted. Tnlrd argument Qdvanced ^iy lecimed counsei for the appellants that the incldent occurred in the spur o|f moment due to sudden provocotion, as the appeiSants saw the complainant rfwty pioughing their fieSd and therefore, they assouited the compldnant and| his mother wlth the back of the oxe is concerned/taking into consideri of inchjcnt armed wth deadiy vital pwts of old tady dged ttion thoit the appeilonts recsched to the place ^eapon oxe ond CQUse-d grievous injurles over out 70 years ^ho instcintQneousSy died, the common intention of the oppelS|xnts of CQusing death of Sukcsnti Bai has been Hghtly jnferred and In our consijdcred opinion the triQi court has not committcd any ISSeyatity ^hile convlcting th^ cippeSIants under Section 302/34 of IPC. In the result, the has no substance, the is Slable to be and it is hereby dismjssed. __^J^_ Sd/- Dhirendra Mishra Judge Sd/- T.P.Sharma Judge