CFb'000061380 DiviSion Bench (Crfmfnsn'"' JN THE HTGH COORT.OF JUDICATURE AT JABALPTIR.MP* Criminal Appeal No.'2-\ 2° /97. CRIMINM. APPEAI. U/S»374(2) OF THE CODE OF CRIMINMi PROCSOBRE-1973.. &PPELIANTS (IN 3K33,) ^.^•Sd i3F).. t'; Shn... lli'3^4 . I,- 11> •' rw* ~....^,.^^, ,.,^^ ^^ •?}!^^\ SvwVu=»._ ivocate ^r^- RLA.R. e? 2. Maaar^ RaaSjfo. Fandurram age 30 years, pecupatioa '&grlcaltare R/o. Vlll- Raiaaipara PS-Sifcapgr Distt- sarguja.MP. Mana Ram S/o. Fundurrara age 35 years, Occapa-tion agricaltare, R/o. Vill- Ranalpara PS- Sitapar Dlstt- Sarguja.MP. i.;/ -Versus- RESPONDEHT. Tbe State o£ M.P. through PS- Sitapur DJ.strict Sargaja.MP. f.V^.' im'? ir~ -. / i!.r XI-HC-22 sii^i ^r P;-ii?b 311^1 ^)+iich ^lfiff ir 's^i -i|i.i|H<i, »xa1'Hf|G, fawi'yy SiT^T 'iRRT iiiMr stitiich 200 fere^sr' sii^i's^gisar'oto ShriA.K. Prasad, le Shri M.P.S. Bhatia, (2'0 Sy this appea Procedure the under section ession Judge, Ambi sr seetions 302/34 to undergo impris 2. Case of the prosecution i: sister-in-iaw (brother's wtfe) of the of Bihani Bai nameiy Dhaniram take possession ofthetandof Bihani Bihahi Bai al9ftg "; .'/>,: .-'•. ctii^(n<fl-i *iHcif '^.'fe1?t <^i-^i< ^SlPaq 311^1 eiforthe appellants. il Lawyer for the respondent/Stati |374 (2) of the Code ot Criminal aecused/appellants l^ave , questioned the iegality and dated 11)09.1997 passed by First Additional in Sessioi)! Trial No. 168/93 convjctingthem ;n al Code an d senten cin g each of ef is that Bihani- Bai PW-7 Is the ised/appeiiants and as thehu.sband ied, accused/appeltants wanted to ai. On the fateful,day i.e. 15.4.1992 iheshwari went t6 the house of her [^i^figS XI-HC-22 sn^w K-\\* an^r sti^ •y?5a •^ 'Tg-ilWlcl'i), 9Tll'y<l<»,.R«'ll'M1< . 3H^r ira^; . <1^A •2-tfe&/9'7 z- 1WWI thfiqi 200 f^B^SI" •3if^i^giwdfei sisler Somarib^i'and when they intervening riight of '15/16-4-1992 went to the house of Somari Bai ii Nankuram ss.to why they had kept,< should be sent out. On heacingcot came out of the house, on whieh CM^I^II ^WV^ ^ f^l<1 '<^1-WU •^ 3iP<m sn^i brother Rlanaram "what are yoy see^ig, assault her", TTiereaffier, Manaram assaulted Somari. Bai-'witti wooden vrfiich she fell down and became un right ear. Inc harnmer. on her head as a resylt of :onscious. Bloodwas oozingfrom the iDentwas seen bv Bihani Bai and tier dauahter Maheshwari and thereaft from the place of occurrence. Matte| of Somari Bai vide report Ex;P-11. Offieer of Police Statiori Sitapur section 307/34 and 109 of the indis to the hospital at Sitapur for trea| injurieson 21.4.1992 at 1Q..30 p.m| was sent to police station Sitapur occurrence, afier.giving notice Ej inquest report Ex. P-10 ofthe deacj was prepared by Halka Patwari. prepared by Assistant Surgeon ofl taken intp possession. Post mort| eonducted bv Dr. K.K. Dutta PW-31 - / ijl ^/ere sieeping in the house, in the |at twelve hours,. accused/appei!ants village Koat (Ranaipara) and asked heir sister in. law in the hause and she (imotion Somari Bai (since deceased) laccusedi'appellant Manraj asked his [^r the accused/appeliarrts fled away was reported by Nankuram^ husband pn receiving this report Station House 1-egistere.d erime No. 34/1992; under In Penal Code.' Somari Bai was taken tment where she succumbed t6 the Thereafter, merg-intimation Ex. P-12 land then offence was converted 'into section 302 of the IPC. Investbating Officerleftfor the scene of ;. P-9 to the Panchas he. prepared body of Somari Bai. Site plan Ex. P-8 ijury report of Somari Bai viitiich was Primary Health Centre, Sitapur, was iTO on the body of Somari Bai ,was who^prepared the post morfem report [Trl%^Rg^ T XI-HC-22 SII^IBT 'feN 311^1 9n+ilcti 'yf^a -<. •fc- T»3^iirtid'4, a'nl'y't®,fawi'My W^?T ^raq? , *fl*1CTl »*1|ch ' ~ WI 2( ----^^••'•••••••-•••-•-- sii^i'i^iwdftd was of Ex, P-3 in which he ooined that over skuil and the death was homic blood stained sari of Somari Bai Blood stained and plain soil was t from th«place of OGCurrenee, Whil gave memorandum of Ex. P-15 in wooden hammer under.P-16. Aft< sheet was filed in the.Geu.rt of Judi' who in turn committed the case to. from where tearned Additional Se' case on fransfer for trial. jauseof death was eoma due to injury jdal in nature. During investigation one taken into possession vide Ex. P-2. feken into possession under Ex. P-14 in poli.ce custody.aecused Manaram ^urstiance. ofwhich he got fecbvered |r oompletion of investigElSion charge |aal Wlagistrate First Ciass, Ambikaour jhe oourt of Session Judge, Ambikapur •sion Judge, Ambikapur received .the 3. ; Prosecution in order •to accused/appejlants examihed' as rjiany th&-accused;'appeilants Vi/ere also n ,of CI-iminaLProcedurem which tttev appearing against them.in the crim| Prasad In their defence. 4. LearnedAdditionalSession counsel for the respective pai) accused/a^pellants as mentioned ir| 5. As far as involvement of. is concemed, Nankuram, hus.hani Ex. P-11 has already expire^and ^l.. . < / cbl^Ici^ll TTTTI^Tf ^ I^^) <Fi|^.l< ^rarPgH 311^1 is against the as 10 withesses. Statements of under.section 313 ofthe Code lisd the prosecution evidence '.alsoexamined DW-1 Jamtina Judge afterhearing the tles convicted and sehtenced the acdused persons in the crime in question of Somari Bai ^vhQ lodged the report theFefbre, he could not be examined [Tf^ ^Pa^ XI-HC-22 ^^•airaRpT, •aTfl'y'iti, I»«'ii*ii< SIT^T 'q^f? ^J-^'X^.^.MIS ^ t)i*<?tra>iiicb 200 fN^ST" an^r^ii R;-<i<* s^v ^RT^ yfi^r 'S-- f^:i sn^r s^giwaftCT before the tria! Court.. Conviction oft! testimony of PW-6 Maheshwari and wooden hammer at the instance of involvement of accused/appeilant concerned, as .per the first informatib was that when Somari Bai cam.e ,out c by saying " what are you seeing, assai \ivho was holding wooden. bammer ass result of which she feil down.As per' against Manaram is that he assaulted and the allegation against Manraj is Somari Bai. - tMat PW-6 Maheshwari has'/stated, commotion she woke up and sawthafl Manaram to assault Somari Bai on wlii on head wfth wooden hammer as a r^ sxaminatiori she has statedthat it is ( and her mother were slegping inside cburtyard.It is incorrect to'say-that s^ iai PW-7 has aiso stated that accus^ (Dewar) and.they wanted to take h( threaten her saying that they would.ta| land. She has further stated that whenl her brother-in-law was sleeping in the wth her dayghter inside the frouse •<~'l. < / ^nzi!fi'41'i TTFMf^ 'fe(st <^i-^i< ^srf^Sti^i ^e accused/appe![ants festson the PW-7 Biharii 8ai and reoovery of laccused Manar.am. As far as the ^nraj in the_ Grjme in' question is h report the allegation against him Ifthe house, he exhorted Manaram jlther"on vriiich accused Manaram auited Somari Bai on her head as a ttie p.rosecution case the allegation the deceased with wooden hammer he exhorted Manaram to assault ^ in her evidence that on hearing accused Manraj asked co-accused ich acseused Manaram assaulted her: isult ofwhich she died. In'thecross |orrect that night was dark and she ^nd Somari bai was steeping in the |e had not. seen the incident-. Bihani |d persons were her brothers in !aw ^r land and for that they used to |<e her cow, bullockand agricultural 1 she went to the house of her sister, |3an;/?/?;and she was sieeping alons In the night at about 12 hours [Tit^^f^ XI-HC-22 T5[ -4i<ll<>f'il, 9Til*)'IC, filWWy 3ff^r 'q?ra? / ^ . enrrA 2-lfco/'3 / '"W;I. 200 HWW a>*1|cb 1^^8I' 311^1 •^1 R-ii'* sn^i sft*iich y^fl aii^i''g^nwgfttt <ii<it<-i<fl'rii*inf 4 fo^ <f«ttdlt • ^; Slf^gq 311^1 ^, her and assauited her sister wjth:woo< reeeived jnjuries oh her head. Sirriilai The evidence of these two witnesses evidence given by PW-3 Dr: K.K. Dut he condycteid the pqst mortejn on abrasions on the right side ofthe hei opening of head it was found that tl injury and there was -fi-aeture of left present. At the instance oftbs accu^ wooden hammer wasseized under evidence assault by aecused Manar; we do not find any iliegality or infirm| trial Court. -' len hammer as a resuit ofwhichshe lis the evidence of Maheshwari gai. jstands corroborated bythe medical lawhohas st.ated that on 22.4.1992 |ie' body of Somari Bai, there were y jn the size of 6 x % x 1 c.m. On lere was clotted blood beneath the 1-temporal bone, ciotted iglood was ed Manaram weapon of offence i.e, ;x. P-16. Therefore, from the 'above m is established arid to that extent ty in the impugned judgment of ths 7. counsel for the accu prosecution it is assaultedthe deceased with an intei as per the prosecution case, the dis Bihani Bai and ,not with Somari Ba'i. were found 6n the hody of Somari Ba 8. On the other^hand learned supportedthe impugnedjudgmentof ^- • • • . . ' 9. In order to appreciatethearg parties we have perused'the eyidenci ./^:/'.' :;;'1' sed/appeliants argued'that from the not established that the accused ition to cause her death. Moreover, iute was between the accus$d and leaiso argued that onlytwo injuries and that too bv wooden hamnier: counsel for the respondenti'State :hetrial Court. .. iments advanced by counsel forthe 6n reeord. [^^fe^ XI-HC-22 T5? "•.ii.i|ici4, enl+i'i®,.fadi'Mi'1- 3TT^9T 'V^K tlllCTI shliqi 'WI. 200 fSre^r' sn^i^ii R-li+SIRRI 5ti+iicft ^f?fl -^ 3TI^?T ?'«il<3T'^tt?T 10. As has been referred to earlier PW-7 accused came to the house of her but when Somari Bai came ou( assaulted her and ran aw'ay. From th| apparent that accused Manaram assal.il hammer in ths intervening night of 15? in the hospital on 21.4.1892 i.e. sb< da^ anU 11. Considering the above facts to the nature of weapon, we are ofthe| inferred thatthe accused Manaram a; to cause her death. In fact dispute Bihani Bai butfrom the aboveevidencte assauiting with wooden hammer the| that by assaulting with wooden hamm|i be caused. Therefore, offence again^l nottrave! beyond section 304-11 ofthe) sedtion 12. ln the result.appeal of accused<| His conviction and sentence under se| and instead he is convicted under to undergo R.l. for nine years. As pe[ Court accused Manaram remained \i\ and now he is detained since 11.0( "^. •,/ . / ^t'i<I<rt41i ^iiHtnt' "^ fe(<il <Rn-^.i< i? 3lf:3H 311^1; as perthe evidence of Bihaai Bai Iher sister-in-lawin order to assautt of the house accused Manaram fe evidence available on record it is Ited Somari Baltwice with wooden I16.4..1992 whereas Somari Bai died lis after the incident. circumstances offhecase lookmg lconsidered opinion that It cannot be Isaulted the deceased with inteotion ras between accused persons and e it can safely be inferred that while accused Manaram had knowledge er death of Somari Bai was likely to it accused/appellant Manaram does IPC. appellant Manaram partly succeeds. ;tion 302/34 ofthe IPC are set aside 304-llof the IPC and sentenced the impugned judgment ofthe trial jail from 20.04.1992 to 07.08.1992 l.1997. Thus accused Manaram is [^^R^ •t.:"-^ W& XI-HC-22 SII^T'^I ft-fi'haTCCT S^ ^ffirT •:^ 1 y ^' «/y^ '•sw''..?^ 3~ 7^!^ :-^~».', ' . ' '.' ^g TqiqRTO, -g^tWiTS, fa<'l!'yy gni^r "q^ NIHWI VttWfi ~' ~ ~ / Wl 'fa^<I""""""""""""" © 200 SII^t TOIIWHfta d for the set off of the ed on him. ~ afo|resaid period against the sentence 13. Appeal of accused/appellant ali the ctlarges .leveled against him required in any other case. 'SdT L.G. Bhndoo Judge >. / ^i^o4)t f^^ ^ f^?y 'Tt^sR ^ SI^OT an^i is allowed. -He i.s acquitted Qf be set at liberty forthwith if not Sd/-. Dhirendra Mishra Judge :/- [-[ft^^f^