^< ^<s^^3<s^s' ^\ -^^f^^^^-^^c/^'nv ^ y^^-y z,4^^/° ^^ •^-. ^-^V/1"""^ -^!;" y77?^^—A ^^ (p®n2J3^J'y^ ^PPIfi C-^y^^^'^^ "^^^^^.F^^^ ^y^'"'.iiSBm^^-?-"^M •^^^S-^fi^m^-V^r ^? BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 13:09:10 +0530 ^;-': XI-HC-22 "^::.; ^T^T^T Rvii?h 'snf^T s^+li^ ^T^H ^-c^h L'-. -S-^^FIRR. "^TPTS. 1N?TRiy 3??t^T ^3F MW^l WW^ C^rcimcd..A^^'<J^-lt52-/:^3 'l^^' : Ho^ble Jii^tiee L.C. Bli^doo, J & Hoa'ble SIiri Justiee V.K Shi coutisel Shri S.K. Chaiidel, Shri Raviiidra Agrawal, By thfe appeal tl has questione.d tlie legality sentence dated 15/12/1992 S^ssions Jud^, Raigarti ni S! leanied IIad Additional, S accused/appellant / guilty fb^ Sections 302 and 404 of tlr sentenced hini to uudergo miprisonnieiit for oue 3'ear dimcted to run concurrently. 2) The prosecution (FW/1) gavemergintimationl ^^ifel^rf ^l^^f ~? fe^ ^RSIT ^^rPw ^TI^T' J. isel for tlie appeUsjit. Paneltewyer fortheState. .JUDGMBKT. tl|ie accused/ appellaiit - Habib Khan of the jzidgm.ent of coiiviction aiid passed by the IInd Additional ^ssions Trial No, 41 /92 by which the ^ssions Judge after holding the comiiiissioTi.' of the offeuce uiider Indiaii Penal Code, coswicted and miprisonnient for Ufe, aiid rigoroii^ r€|spectively, Both. the seritences were "ase, in brief, is ttiat Esfawar Gupta (Ex/ P/ 26) to tiie SHO Poliee Station, [Tft^ ^Ra^ ', T XI-HC-22 B' sT^T^r R-li^ ^lf^? '^'RW^ItpT V:-- - Y.~.- <^:: ^^ ^TT^^ fs|^l^ll< a^ri^T xE^q? w^i ^^ic^*"**"***'"**"'**"*""*"*"*'"^^ 200 ^^^....................^........... 3T^T?^T^R^Tftq -2- Tamnar on 06/ II/1991 at today in the niomHig at Shankara Bai went to fhe Ijll refpnT dziriiig the da^', he ^e his graad-motherwas lyiiig When he went iie.oj' the bodyl dead aiicl blopcl was coinuig report, Deliati Nalshi (Ex,P^| SHO, PoUce Station, Tamn£^' first infomiation report (Ex, Chouhaii, SHO, PoUce Stati<| On 07/11/1991 after givmgjn dead body of Shaakar^ Bai broken pieces of glass bajiigl Ex,P/4 fiDm fhe place of one slhrer boxJK)m fhe plac^ took possession fhe Ex,P/6 aiid'reconled the sta^ io. the poUce custody fhe ijibout 20.05 hours to the efFect that 1about 9.00 a:m. his gi^nd-m^ofh^r agricuttural field aad sfae did uot lent in search ofheraiid he saw tliat iiviiig jnot: cni14l^<fl<l '^R^f'? 'fe1^ <^l^i< ^T'a^R^n^f the agriculture field of Aqun Kaleta, he saw that Shankara Bei was lying ^ut froin her mouth, On receiving this y. . .' 125) was recorded by M.S. Chouhan^ ^T, CaBxp at Bijna aad based on that p/ 23) wa.s rcgistered. , .PW/14. - M.S. ^n., Tamuar took iip the irwestigation. jnoti^e, he prepared Paochnania of fte (Ex. P/ 2). He took into possession tiie fcs of red colDur aad one t)askef under |iirreiice,, He also took iato possession. of occuiTeiice under Ex.P/ 5. He also staiiied soil aad plaJii soil iiiider (:ements ofwitnesses. On 16/11/1991 |ccused/appellBnt - Habib Kfaan ^ve ^» [Tft^ ^R^^ occtarreiice, l3l^od XI-HC-22 -^TI^T^T 'f^N'CT^I 5R1RW^ftcT l-,~< \. T (^ '3TS[ ^HI^I^, ^Tll^^l^-IN^ITHy 3H^T ti?W ^i*1^8( Sh+lgcb '^ 209 'l^^r" ^n^T^TTW^rftn -3- iTrfbraiafcbn (Ex.Pf?) under ? presence of the witiiesses ^rafepN w^f-^^^tf^R '^^Fra^r &ection 27 of the Evidence Act m the aiid in pursuaiice of that b^ g3t j^covered one silver oma!4errt (Kara^ wom l)y ledies on fheir waist and the same was go daughter-m-law of fhe dece^ I: identified by PW/5- Bhag^vati Bai, ised Shajikara Bai and memorandTim of identification (Ex.P/3) ^-as reduced ia writitig, After completion of the mvestigati^n charge she.et was fUed agednst the prcsent aocused/appellaiit. HQwever, the co-acczised Nawab Khaii could not be arrcsted and hje reniaiiied abscoiMled, Char^ steet was filed agahist tlie accu^d/appeUmit m the Court of Juclfc^ Magistrate First Class^ Gh. case to the Cozirt of Sess! ^rghod^ who in. tiim committed the ons Judge^ Raigarh, from where the lesTDed IIiid ftdditional Ses^ions Judge^ Radga^ received the ease oii transfer fortrial. Leam< after perusiiig the records offences under Sections 301 ttd Additioiial Sessions Jiidge^ Raigarh^ was offhe Opiaion that prima facie^ 2 and 392 of the I.P.C., were made out against the accused/appe}laat, therefore, charges were framed. Ac^nsed/ appellant abjzired the charges aiid pleaded iiiDocence. [^^f^ XI-HC-22 •^^TqraT^.-^N^/l^^^ arri^T 'ET^? WWF8l ^hNScb "a^ 200 •f^sr' STT^T'SFT '^ri^^T?^ ^^i<^ ^n^d ^n^r'^CT^R'^f^r -^- <=hl^id41"1 i41^d1* °^'Sx^ Ti^?R ^^msn^r Y- 3) In order to a^ccused/ appeUant prosecuti witnessea. On the ofher hand was ^recorded by the 'leemedl Section 313 of the Cr.P.C., i+- eyideuce appeariiig ags-iast hi aiid he has been falsely impBc^ aiiimosity, Accused/appellaijit JaluUa Kban. (DW/1) as defenc| ^rove the charges agamst fhe m examtiied as many as -14 statement ofthe acciised/appeUant Additiorial Sessions Judge under which he clenied^ fhe prosecution sjrd pleaded that he is miiocent ted hi the case by Jsjlal due to old examiiied one witiiess nainely Additibnal 4) The leanied the ajrgtiments of leanied Ad le-amed coziiisel for the seiitenced the accusecl/ appeU^ earlier part ofthis judgment, Sessions Jiidge, Mter heariiig titional Public ProseGutor aad the i^cused/appellaiit, convicted aiid ^Iat in. fbe manner mentioned hi fhe 5) We have hear^ accused/appellaAt aud fhe Pa^iel leanied counsel for the La^Tyer for the State, perused [IIT^ ^n^.^ XI-HC-22 ^, -5^7qizn^.'gT^y4is, t^Tray SRT^I^T ^wan^i ww^ ^\^ ^. -fc^.--" 3TT^T 'q^? ^TRC^l ^^l^ "?R, 200 ^E^T* sTi^'^nw^rf^ tfae judgnient of the trisl record. cb^Id^'l'WI^'^ •ft^Tf^RZR ^3R^H-3TT^ •urt and fhe e^ideace available on 6) .Leanied cozuisel (for the accused/appeUaat did not dispute the fact of lK>micid^l nature of death of deceased Sbankara Bai. Apart from th^t, PW/9 ~ Doctor A,G. Shiek lias stated that on 07/11/1991 h L was workiBg as Assistaiit Surgeon hi the PriBia^y Healfh Cent|'e, TajTiiiar Mid 011 that day he condTicted the post Biortem 011 noticed that bot]i eajrs were rmgs are wom and there were uaU. There were two abrasiom €>^ : was bniise. on the right side| ^ .". ~... •". ' and clotted bloodwas presen| 3rd, 4th, 5th aiid 6th ribs ofright the dead body of Shankara Bai, He •€^.' .. . [acerated froni the p^ace wliere ear 1.2 al^rasions oii the ueck caus^d by on right side of fhe neck ajid fhere of tlie chest ia the si^e of l/2?? x 1/2M i: ia fhe throat aiid wiiid pipe. 2nd> ^ide aiid 2nd, 3rd, 4th and 5th ribs of left side were fractared. He ga^e opmioii that afl wouiids ea'e sjite morteni wounds aad punctu-redl wounds ofboth lungs were fatal ui was Syncope on account of nature a^rid cause of death heinorrhagic shock, The natu|re of* deafh was hpmicidal, He [^^ XI-HC-22 ^^'^TPT^FT. ^WT?, 1^ra^ ^T^T^T s 'f^w^nt?! ww^ ^\w ^. v-^5, 3^iOT '^i^ MINdl *^icb*'*'a**'c**'*ca'<a*<<^'''a ^ff^ 200 "1^6^"""""""""""" 3:II^T '^IT^R "^fN -&- prcpared fhe regort (Ex.P/12| Doctor A,G. Shiek/it is establ|i was homicidal ia nature, 7) Now coniMig fo 0-ccused/appeUant in. corsimil concenied, Shri S,K. aceused/appella^nt argued th^ not inspire cpnfideuce for dfeclose fhe fact of witnes^ jthe question of inyolvenient of fhe iil|tuig tlie niiirder of Shan.kara Bai is C|iajidel, leamed couiisel for the it tlie tevidence of PW/2- Jailal does the-reasou fhat Mr< Jait^l did iiot accTised/appeUaTit was Nawab Khaj^. to Eshwar Pra witnesses are not szipported omaoient was recovered accused/ appellant caanot be of rea-oveiy of sUver omaiae|it 8) On the other respondent^ State supported 'W^fer^T 'RW?ff'? fe1^ <M^s< ^^ri^R^TT^l In view of fhe evidence of PW/9 - ^hed ttlat the dealfc of Shankara Bai ^ing the crim^ fhat he saw fhe press^iig the iieck along wifh. co-acciised sad (PW/1) aad the veraions of eye- l^y the iiiedical evideiice aiid fhe silver ^rom the open pla-ce, fherefore, bonnecfed with tlie crime dn account h^iid, leamed Pediel Laws'er for tiie f|ie judgment of Ifoe triel Court. [Tit^ ^n^^i \. +. XI-HC-22 3TT^?T^T "f^:iW3T!t?T ^^n^^ir^T fr <:. ^ <.; ^^ ^TRT?R. 'ST)I^S?»^fTCTy an^r 1i7^? MW^l ^P-O^ "Wl. 200 'I^^T' ^H^T ^<IT^T ^rf^T --1- 9) Having heaid scanned tlie prosecution iutrodnced as eye-witness to the fatefdl day after workmg fo his liQuse at about 12.00 i towards Marghatia Tank to was m fhe agriculture field <^ aiid Habib Khan were pres^i Bsi said he was able to lc lealiied at|:eud ideujify fr^m frightened aad ran. away vfflagers were also frightenedj Khan and Habib-Khajii as the^ tiieft. Next day he disclosed was fiightened after seeing tl^ house aiid went for sleep, Ir^ that he faad, n<5t disclbsed An-smtram Patel has been stated that on Thm-sday a disclcteed him that he had cbi^f^^lt 4-{i^<n'T'^ I^^l <fa-^i< iT^Tf^m^^T Goiuisel for the parties, we have e|yidence. PW/2- Jailal has been Pie mcident who has stated fhat on |ii fhe agriculture field he retumed ^oon' aiid after.takmg iiieals he went the call of the nature, When he ijf Manrm, he saw that Nawab Khaii [g the neck a-iid waist of Shaiikara them. On s^ymg tliis, he was the sceue of occuiTence. The on accounf of activities of Nawab always iavolved in the Maj-pit ajid jthis fact to Anaiitram Patel. As he |e mcident, he csime directly tb his cross-exammation he lias stated tl|iis fact to Eshwar Prasad (PW/1). ^s witness (FW/4) who has about 7.00 p.m., Jailal (PW/2) fhat Habib Khaa aad Nawab tDiis exslinined witniessed [Tft^ ^fd^ T XI-HC-22 3?n^T^r I^N'31^1 '5h^icb ^ritn I'' £.'-- l^t ^ss '^TqRT3T, ^ft?F%, fa<ni^1< 3TI^T ^5ra? HI^-R'TT^HI^ "W^ 200 •fgre^sT' ^n^r'i^T^t'^rf^r -<3- Khaii were pressiag tlie u€ck| field ofArjun Katela. Kirtirais:i| had witnessed the accused exaraiiiation he has sta-ted. tha| fact to himi^ no third person^ that the incideHt was about 1, ^as on 5/11/ 199 1 he was gra^iiij he saw Habib Khaii and Naw^ agriculture field of Aijun Ka1 body of Shankara BaJ -ni tbe s 10) The fair scmtiir witnesses sbows fhat PW/2" ^. his evidence staads conDbo AnantrRm Patel who lis^s PW/2- Jailal disclosed bim neck of Sh^jikara Bai, The corroborated b}7 fhe evidence on the fatefiil day he saw the t • • agriculture ^leld of Arjzin <^i^(<n<ilti ^8+i<yiT'? fe^ ^R$K '^37NH37T^r of Shankara Bai ia tlie. agricultare also mformed him that PW-3 Jifkxl p^rsons . niniung away. In fhe cross when PW/2 - Jsilsl disclosed tliis preBent and JmleJ iafonxied him ,|30 p.m. PW-3 ditkii has stated that [^ catfle m the field and at that time |b Khaa ninnm^ away fhrough the 'la ajid next day he saw the dead Igriczilture field of Axjun Katela. of tiie evidence of fhese three ?aUeJ witnessed the iacident becaiise stAted tljiat rated by tlie evide.rice of PW/4 - that on the next day isioming he saw fhe accused pressio.g fhe ^vidence of P¥^/2 - Jailal is further ^f PW/3 - Jitku, who has stated tliat ^ccused persons ninniDLg through fhe \. |Katela^ fhje place of occurrcnce, -?^_ -\rs •< [^t^^ft^^ ^ XI-HC-22 •^- <37?^T^T f^-Ti^ 3?n^I $h+ijc^ ^^ \. -3^ ^|^ld4. ^ft?PT5» I®l<ni<^ 33ff^T ^(SR NS^^SS ^^l^'""""""""""""""""'""^^ 200 ^S^T* Tlierefore, iii view of the abov^ be attacbed to the sTguments accTised/appellant, In the fir€ has -stated fhat he was fright^ued sjid on account of nefarious and co-accused - Nawab Kh£ next day fhis witaess disclc Anaiitium Patel and it has b In the cross exaiiiiiiation of show thafc this witriess has on account of old anioiosity Jajlal slso staiids corroborat who saw the accused person^ field of Arjun Katela, Thej coiToborated b^7 the medicalj has categorically stated that neck of Shej^ksra ReJ caiise^ abrasions on the right side| Sliainkara Bai were laceratedl '^ifzlf^t;T "RTH^f ^ fest <f^l^l< ^? ^Frf^TH <3?niST |t evidenjce, much ioiportaiice cannof advao^ed by leamed counsel for the |tmstance, the witriess PW/2 ~ JailsJ: [, therefore^ he went to his house ^ctivities of the accnsed Habib Kha^i |ii tlie vUlagers werc frightened, The ^sed the witaessirig tlie iiicident to ^en prqved by Anaat Rani as PW/4, paUal^ nofhiag has been brought to d^posed agauist fhe accused/appe.llaiit t>r aiiy other reason. The evidence of j^d by fb^ evidence of PW/3 ~ JitkzL, rLinning away froni the agriculture evideiice of PW/2 Jajlal is also |evidenGe. PW/9 Doctor A.G. Shiek Ifhere' were ti^elve abrasions on the 1 by nail and there werc^ to^o other of tlie neck aiid botb the ears of fi-om the place wh^re ear riii^ wom [Tit^^fe^ XI-HC-22 3'TF^T'^T fe<(^ ^^ ^*i|ct) ^H < ^~::- :^ ' -^ ^^? ^n^rq. ^Tiiy4^. 1°Rroy 3Tri^t ^R^? 'iTraw'^rwg?*''*''**''*'***"*''*^'^*'''*** ^?^ 200 """""fN^T""""""""w 371^1'^n^rt ^rftn -vo- mjufies which were found cn tlie body of evidence of PW/2 Jailal, who has |ed persons Habib Khao a^id Nawab Khari pres^nig the neck of Sh^nkara Bax by ladies, Therefore, the mju4 Shanke^ra BaJ tolty with ti4i stated th.at hey saw fhe accu^ 11) The evidence of t . -. by recQveiy ofthe Silver Kar^ iustajice of the accTised/a-ppepa-ilf Ij*W/ 2- Jailal is further corroborated kt of deceasecl ShaAiks-ra Bai at the stated th.at fhe accused gave his presence regardiiig the he furfher stated tih.at IiiV€stigat|ng accused got recovered silver iiito passession under Ex.P/^ (B) which was recovercd at M.S, Chouhati, iiiemorauduin (Ex. P/7] aud pilrsuance ttereof at the ins has edso proved tliese categoricslly stated flis^t the 'wrf<rl411?t ^i+i^ ^ fe^ ^f^$R ^N^H^TT^T ellanf Habib Khan. PW/6 - Mittu has meiiioranduiii Ex.T>/7) tp PoUce ia •^ Diiceainient of the sHver on^Eoiient a-ud ia pzirsuaiice of that infQrmatiou lomanient and the sa-nie was taken $ aiid tliat sUver oniejiient is article tljie iastance oftheaccused,PW/ 14 - Ofiicer .who rcconled th^ rcc6vered fhe sih^er omaiiient in iiistaiice docuihente of fhe accused under Ex, P/ 8 PW/14 - M.S. Choiihan has accTised gaye iiiformatioii that the [•q^^fm T XI-HC-22 3??^[^T '^ri^3??^r sft^icb 'HfiU v' ^.. ^T^ ^TPTI^f. ^Tll^Ko, f^^l^y . 3^i?T ^S^ ^S^^S ^W^''**;"''^***'<'*'*"*''****'***<^^T^ 200 '^^ST""""""""""' sihrer omament has been cr Ariun Katela near fhe Mai rccovered iii pTirsuance of ths fhe agriculture fieM of Arjun K 12) Itis.tme tliat the the agricultiire field ofAnun Ixrvestigating Officer - MJ concealed in the agriciilt^ mstance of fhe accused. It i^ was tyiiig ia the open pla| poBsessioTi/ Tlierefore, thei^ teamed counsel for fhe accus< was recoveretd from: the open of deceaseci Sliajikara Bai| PW/5 - Bhagwati Bai, daugh| who has tiiat fh^ sih} asid tlie sejne was identified bears her signatiire inider aB CM^t<n<i1<i H\^S ^ fe^ ^^K ^Sif^Sfl^T |ncealed m the agricultilre field of, j-ghatia Taak aiid the sajzie was k at the instajice of the accused froia ^tela near the MaTghatia Tank, isilver oniaiixent was recovered froni }Catela, but it has been stated by fhe |. Chonhan (PW^ 14) that the same |ire field e.nd it was recovered at tlie not a ease that the silver omajnenf ' ve. aiid the ssjiie was takeii mto is no Taerit in fhe argtiiiients of \d/ appeUajit that the ssid oniajnent Dlace. The ssid silver oraaoient wa:s The same has beeii identified by ter-in-law of deceased Sliajikar Bai "r omajiient is ofher motlier-iii-la-w y her usider Annexure P/3 aiid that toB". [Trl^^R^ XI-HC-22 ^TT^T^T 'f^ri^'^nt^T 5b^IGn "^fin ^ ^,^ r^" -w^ ^TraT^ra. '®'?NTTR»ft<ni^^ 3ff^?r JR^ Nl^<y31 ^^tiG^""**"* *'""*'**'"*'*"*'*'*" ^T^ 200 •i^sT"'"""""""""""""""" 3^T'^TT^T ^fN -\ 3.4 13) 'Therefore, the ev^lence wrtnessing the criine in quest;j|3n, saw fhe accused runniiig froi4 at the time of iiicideut aiid niorteni report which haye b( Shiek aiid the-'recoveiy of-s^ accused/ appellant establishe< with co-accusedwere the of eye witness PW/ 2 Jajlal - |3ii, tlie evideiice ofPW/3 --Jifku wlio tlie agiiculture field ofArjun Katela fhe Biedical evideiice and the post ^en proved by PW/9 - Doctor A.G. k/er oms-ment at the instariee of fhe autftor to snatch the silver omainent! involved in the crimiDLaFactivl to the Ufe of Shaakar B able to establish the offeuce the accused/ appeUajit beyoiK to this efFect recorded by the and the saine cannot be iiitei friel Court has righ^ lield for comisiission of the offeiice sentenced him correcfhr» chl^(d^"< ^H^I'^'fe^ ifa^K ^3ri^T3H^ thaf the accused/appeUaot alpng of tlie heiiiozis criine and HI order froin Shankar Bai fhe accnsed was ^ty and caused injunes which were |d, Therefore, prosecution has been ^- • '. . • . i^nder Section 302 offhe IPC against reasonable doubt and Ae firiding tdal Coiirt based on legal evidence iiitetfered by fhis CoTirt Therefore^ the gujlty accused/ appellajif ~ Habib Khaii liinder Section 302 of the I.P.C. ancl [1[ft^ ^Ra^ XI-HC-22 Sn^T^T Rrii<=b 3ni?r $ti^i<=h ^Ra ^ y\ ^ ^ 'T^T v^ll<Llld<ll, ^Tl1^41<o, (G«rtl1M^< 3TT^T T^W *11^1^1 ^^}ch*:---*—"—:•——'•——^F^ 200 'I^^T' 'STT^T '^TT^R ^rftTT -(3- 14) As far as offerice u concemed, fhe reasoumg given l^y fhe tnal Courtni para 27 of fhe Judgment based on surmises ajml coiyectiires, it iB not a case where the.eccused;.took away fh^ Shankara Bai and niis-appro^ the trial Court is contrary to fh^ clearly stated that the accuse) -t violence pressed fhe neck offence under Secfion 404 of tfa^ tlle- acczisedy appellant. Howeveil 302 offhe I.P.G., we do notwanf| 15) In the rcsult, as th-e. coiiviction ewarded' under sentence awarded Tm.der that -sed 16) Ttie appeal is disDO^ <^Nf<n<flTi ^w<nT "^ f^^t ipsi^K '^3Tf^T3T[^r ider Section 404 oftliel.P.C., is sihrer omament from tiie body cxf ' riated the same, Tliis fmding of evidence of PW/ 2 Jailsl who has 1 was involved ia tlie pliysicsl of Shankara Bei, fhercfore, fhe LP.C,, was not oiit against since the accused/ appeUaiit has alfeady beeii faeld guilty foi' coiliBiittiiig the offeiice zuider Sectibn to go further, far as coD^iction a-iid senteiice awaided under Section 302 offh^. I,RC,, are mamtained, However, Section 404 of the I.P.C., and tion are set aside. ad of/—- Sd/- L.C. Bhadoo Judge Sd/- V.K. Shrivatava Judge [x[t^ ^R^^I