-8C—78 TSST '-4t*ll<?'>^, ^Tfl-H<l<S, (si^Kl^i *<l*4dl sb^Kft W^ 200 ^^T^T'R^T^ '^ff ^T??¥T^HW 3?T^?r xi^cj? (4C<^<^) 'i^rrw^fi^ ^??^i CR.A.N0.22$ APPBLLAWT Versu^ RESPONDBNT D3VISION BSNCH: HON'BL^ HON'BLB cbl^i^^Jl'i ''TO^f ^fe^ <r^^K "^ ^tfiP? 3?1^T ^F_2!OQ2 Efevm'am., S/o. Solipji Ram. Uraon, aged about 40 years, resident of Vitlage Bipatoli (Jashpur) P.S. Cit5-r Kotivali, Jasl'ipuiTiagar, Distt. Jashpur (CG) State of C.G., Through P.S. City .Kotwali, JashpuniageT, Distt. Jashpur (CG) APPBAL UNDER 374(21 0?_THE CRIMINAL PROCtEDURE CODE L.C.BHADOO, J. & SHRI T.P.8HARMA,J» Preseut: Shri V,P,Gupta, couns^l for the appellaiit. Shri Raviodra Agrawal,| Paiiel Lawyer for the State. ORAL JUDGMENT (218tJFebruary 2008) The followiag judgmerrt! was delivered by L-CoBlaadoo, J 2 This appeal is directe<| aiid order of sentence dated agaio.st the judgment of convictiou 21.12.2001 passed by the Second XI-HC^-71 3^"-qNt0-q, ^rfly^Ko, R|0|<rl^< :2-^ *41*4dl th<41cb "^ 200 311^?T'CRTcR ( <l?|fl<t8<i?T) ^n^T^T'^i^ ^[SH ^n^r ^pN? ^cTOT^rft^ 3n^?r -£.'• ch8<<I<yl<Ii»1'WI^Jf "^.fe^t <FSI^I< ^3TfW3??I^T Additional Sessions Jzidge whereby the leanied Sej accused/appeUao.t guilty for Section 302 ofthe IPC.sente4 Mfe aiid to pay a fine of Rs. 2^ further undergo additional in^ (fTC) Jashpur ia S.T. No. 189/2001 ssions Judge after holdiag tlie the coniraissioii of the offence under ;ed hiai to undergo toiprisonnient for p00/ -, ia default of payiaent of fiiie to )unient for two nionths. Hqpnso 2, Case of the prosecutio; 13.8.2001, sonie dispute aros |i, io. brief, is that in. the. iiioraiiig of |e bet^reen the accused/appeUaiit aad his wife ou tlie ground tb.at ^hen he deinaiided food froni his wife, she did not provide hiin foo^. aad tlie accused attacked his wife Jac.ki @ Sohani Bai wifh a shar|3 edged siclde QII her head. The Biatter v^as reported by Viiiod Pradhaa iii the police station Bagbahara zinder Ex, P-7 ^ hich was entered io. the rojnaincha saiiha vide Ex. P-7, Injured J^iild @ Sohaiii was isnniediately taken to the Distdct Hospital, Ja: hpur where she succunibed to tlie iojuries, On tlie requisition 1 of the poHce station Jashpuraagai' Ex, P-9, post in.orteni was conaucted ou the body ofJanki@ Sohaiii by DR. K. N. Choudhaiy (P.|V.-10). He opined that the cause of death was neurogenic shock |lue to head iojury aiid the nature of deafh was hoinicidal. He px'e.pared post niorteni report Ex. P-15. Based on this report, tiie F|rst Informatiou Report Ex, P-10 was registered. The luvestigatm.g C|fficer left for th.e scene ofoccurreuce. After giviiig uotice to the pao.i body of Jaiiki (@ Sohaoi. The i Aas, prepared io.questEx,P-l on the blothes of deceased were seized under XI-HC—78 3:^T ^1^1<^<4, ^T{1-H41<o, fs)01-y^< 'WTCTT sb^lch •^ 200 ^i^T^r^i^ ^^T 3?1^T 5^^i<=b 3?i^?r xpra? (1j?tgp^y) '^RiTW^ft^ 3^??^r ^%- Ex. P-12. Plaio. soil ao.d blood froin the place of accused/appeUaat gave he kept the weapon of Mood stained sickle was prepared under Ex. P-6 by investigation, charge sheet Magistrate, Jashpum.agar, Sessions Judge, Raigarh froi^i Sessions Judge (FTC) Jashl>- trial. 3. Prosecution to. order accused/appellaat examiiied! of fhe accused/appeUant w^ ^l^id^l^ ^i*i<?il ^fe^ <fa+$i< ^3TRg?T3?1^T staiaed soil was seized under Ex.P-2 While ia police custody, the regardiag the place where ^sickle, In pursuao.ee of which a ei^ed ziuder Ex.P-4. Site plaii was Pafevari. After coinpletion of fhe filed ia fhe Court of Chief Judicial in tum. conimitted tlie case to the where the leam.ed Second Additioiial ^ur received the case on transfer for occurr^nce ineiboranduni offdnce Halka vtas ^iio jto estabUsh fhe charge agamst the as niao.y as ten witoesses, StateBient is recorded iinder Section 313 of the Cr.P,C ia which he denied t|ie niaterial appeariiig agaio.st hiBi ia the prosecution evidence ^iid stated fhat the witnesses had deposed agaiast him. just f@r getting in.oney from. the Muuicipal Council. 4. L-eamed tdal Court after hearing counsel for fhe respective i< parties, couvk-ted aiid sdntenced the accused/appellaiit as aforenientioned. ! XI-HC—78 3^cr^Tpn^T, ^Tn'y1!^, ft^i'yy tTTOW shHich "^ 200 3iii?r XR% (<ic<?a<^y) ^??^T??T'{^ri^ 'cCTsn^T^^i^ i^n^R^f^^i^r -Lt- ^s^fo^l^ 'prn^? ^fe^ T^R?R ^3^CT3II^ff —-L 5, V/e have heard Shri V, Shri Raviadra Agrawal, Paiie^ f>,Gupta, counsel for the appellaat and La\v/er for tlie State. 6. Leai'aed counsel for th^ accused/appellaiit has not dispzited fhe honiicidal death of Jaijiki @ Sohaai, Moreover, Dr. K. N. Choudhaiy (P.W.-10) has sta|:ed that on 13,08.2001 at about 3.45 a.m. durmg the treatment J^-nki @. Sohani died ajid thereafter he conducted the post mortem ^ a laceratecl wound ia the left' n.her body and fouud that there was [tem.pro-parietal region. The. teniporal bone was fractured, clotted ^lood was present ia &e bram. .The size of fracture was 3x3 ^ni. Injuiy was .Emte-m.ortein aiid hoiiiicidsd- m uature. The me(|ical evidence is corroborated by tlie evidence of P.W.-4 Kuti-daugjjiter of fhe deceased Jaiiki @ Sohani ajsd accused Etwaram who h^s stated fhat on the fateful day, she was at her resident. In fhe mc|m.mg, she went to ao.svv7er the call of nature. By the tioie she retabied, she saw that Iher mother was lying io. a pool of blood aad Ijlood was ooziiig out froin her head, her fafher was staadmg the|~e holdmg siclde in his hand and thereafter he rsai towaKls tli.&| forest. She has turther stated that she heard the coBiinotion ofthje quarrel between her pai^nts. 7, P.W,-6 Sukni-niother iri law of the accused and mother of tfae deceased has also stated tSiat on fhe fatefal day she was sitting ia fhe courtyard of fhe houseiaB.d niside fhe house, accused and deceased were quaiTellmg. ^hen the accused attacked flie XI-HC—78 ~5^3S ^ll^l^-q, ^>T{1-Mj|(o, (s|<yl>l'M^< 'w^ir sb^<<*» -^ 200 3H^?T T^rai (<jc(i^<^) ^i^r^rk^ 'd^?? <3?1^?T $^^i<^ ^?fTW?rft<T 3?H^T --•!- deceased, she raised the cries ^7] daughter went iiiside the hous| Ja.iiki. The accused was holdirijg fhe hozise. 8. In fhe cross examinatio4 reasou for.th.e quarrel betweenj not know tiierefore froiii the also the niedical evideuce, it isj @. Sohaai was honiicidal in nat-j Q_ question is concemed, P.W,-^ evideiice Bientioued above^ hs ^8<4l<n<ili '^IWif ^fe^ ^S^K ^'3tRF|3^T 7hereupon she along with her grand ? and saw the in.jury on the head of sickle in his haiid, raii away from 1, .she has stated thatwhatw.as tlie- !the accused aiid deceased she does et^ideiice of these t^vo witnesses aad lestabMshed tliat fhe death ofJanki (irc. As far as tlie conipMcil^ of Uie accused in. the criiae. iii Kirti aiid P,W.-6 Sukru ra tlieir .s categorically statcd that on fhe fateful day, the deceased aiid 4<'<^^sed were ic. their house. P,W.-4 Kirti went to aaswer the catl olj nature aad wheu she retumed she saw that her niofher was lym.gjia fhe house ia a pool ofblood aad blood was oozio.g out froBi het head. The accused/appeUarit was stan.dio.g there holdiiig sickle Aid he rao. avvTay towards tiie forest. P.W.-6 Sukra has stated tiiat on tiie fateful day at the ticie ofthe incideut, she was sittmg io. the JcourtyaTd whereas fhe accused aiid deceased were inside the hhuse. She heard the coBiBiotioii •thereafter she- heard fhe cries of her dazighter sayiag th.at she has beeii attacked. She alongwitti Ijier grand daughter entered aad savv7 that her daughterwas lyiiig aa^. she was injzired on th.e back ofher XI-HC—78 ^?^^^, ,^::^. "'%, .i.. W.^^^i^^ % i ^12S^^ S 1 T" J] Y ^y ^y- •S^ss r^|H|<?!><4, ^Tfi'y^KS, (c)^iy^< Nl^dl sb*ll<sk ^ 200 ^^T^T'^T^ ^T 3?I^T S^^ICST •v 3H^?r X?5?ER (l^ll^^l) i^HW^if^^T^T -£- head and the acciised/app^ haiid, Moreover, when the accused was wifh the decea^ Sukru (P,W.-6) went near leavnig iajured Jaiiki. Thi^ establishes his iiivolveineiit the poMce czistody the regardiag sickle, where he of blood stamed sickle estabUshes fhat fhe accused questioii. To that extent, vre chi^id^l^ 'W1^f ^fe^ lf^R$R ^3?iRR3^T Uaat ran away holdiag sickle io. his jdeceased sustaiiied the injuries, tlie ^ed. Moreover, when Kirti (P.W.-4) ac.cl deceased Jaiiki, accused rao. away conduct of accused/appeUao.t also |aa:d during the nivestigation while ia ^cused gave menioraiidzim. Ex, P-3 |kept aad at his iiistaace, the sickle stamed with blood was seizefl under Ex. P-4. Therefore, the seizure fhe io.stao.ee of accused • further ^appeUaiit was autlior of the crmie in sp.o not lisid aay Hifirmity or iUegalily to (since deceased) she did not the coinplicity oftiie accusedj/appellant ia tb.e crime in question, 10. Leanied counsel for th^ accusecl/appeltaiit argued fhat there was no previou^ aoiniosity l^etween the two. Moreover, as per th.e prosecution case, when tiie ^ccused deniaiided food froia his wife provide food aad on that grouud tiiere was sonie altercalion betweeli the two which enraged the eccused aad ia tiie heat of pas^ion without aiiy pre-mediation or li preparatiou the accused attaeked the deceased all ofa siidden with the sickle which was lying ii|i the house only once aiid ran away. Therefore, in the circuinstaB.4es? t^Le offence does not travel beyoiid 1 Section 304 Part -I ofthe IPd. ,,^:?5^^, ^-% ^ XI-HC—78 r». ^^•^•^^. ^ ^i^S^ | 3H^T ?5T'f^lt^ ^n 3H^T'^N? •< •S^Sf r^l'410^, ^Td'M1!^, (c)<r>l^^< Ml*4crll 5h*41cb •^ 200 anisr T(^? (^1<S*<^) '^fT^'^f^[3?I?^T yim 11. On the other haad, ^h State supported fh.e jtidgirLeijit 12. In order to appreci4te the argunieuts advaiiced by fhe Gounsel for fhe accused/a-p^ellziB-t, P.W.-4 Kirti and P.W,-6 Sukru dauphter aiid niother of th.el at fhe tiine of io.cide.nt, hu^ accnsed/appellaat attacked food aiid on th.at count fhe| his head. Therefore, case covered by Exception IV of with sickle, we are of fhe chHfd^ll^ 'W?^? ^fe^ <fa^K ^^iRR^n^f ri Ravm.dra Agrawal, counsel for the of the tdal Court, deeeased has categorically stated th.at baiid aad wife both were quarreUiag. Thereafter P.W.-6 Sukru he^rd fhe cries of the deceased that the her aad fhe case of the prosecutiou is that accused deinaD.ded foo<p. froni his wife, she refiised to provide re was sonxe quarrel between the two where.upon the accused att^cked th.e deceased with fhe sickle on |^f tlie accused/appeUaxit is squarely pection 300 of the IPC. However, frorsi the facts and niaiiner in whlch fhe accused attacked fhe deceased considered opiaiou fhat the offeuce aganist fh.e accused/appellajat does not travel beyond Seetiou 304 PartIoftheIPC. 13. Iu the result, the appejal partly succeeds. The convictk>u aiid senteuce ioiposed upon the jaccused/appeUan.t under Section 302 of fhe IPC are set aside. Iiij stead ttiereof^ he is coiivicted under Section 304 Part-I of the IP(p an.d sentenced to undergo RI for ten years. It is m.fonn.ed that Ifie accused/appeUaut is in detentiou since 14,08.2001 till today, itherefore he will be entifled for set off XI-HC—78 /f'V- n.^. 75ST "MN!0<.1, ^TH-y^KS, fs|01<-)^< ^l^dl ^WER 3T^T ^RT fqiic?) ^r'sn^r'^Rw ^ v < Suguna "^ 200 S^S^ ^SSR ( 4c<^<i^) '^iTW ^?ficl 3TI^r -^^ of tlie above detentiou peri<| hiai. cM*lt<y1<iiw1 'W^f ^\fe^ <pt|^l< '^^tRR3T1^F d agaiast tlie sentence iaiposed upon Sd/- L.C, Bhadoo Judge Sd/- T.P. Sharma Judge