WW, §$H1 g. ,W mm 111 200 mm (W) WWW ammm WWW .miammiwm ammm ORA. N0. 915/2001 Rukdhar, S/o. Manglu Gond, aged about 25 yams Smt. Mamta, W/o. Rukdhar,’ aged about 2O years Both resident of Village Badgaon, Sadakpara, RS. Chhote Dongar, distt. Bastar (CG) APPELLANTS ‘ 1 . Vers1 RESPONDENT The State of Chhattisgarh, Through The Station House OEcer, Police Station Chhota Dongar, Distt. Bastar (CG) CR. APPEAL UNDE R SECTION 37412! OF THE GREG. DB g HON’BLE SHRI L.C. £5 HON’BLE SHRI T. BHAD00,J. P.8HARMA,J. Present: I Mr.-Shai1endra Dube , counsel for the appellants. Mr. Sandeep Yadav, Dy. Govt Advocate for the State. t This appeal is dim and order ofsentence dé \\\ ORAL JUDGMENT 10m April 20081 :ted against the judgment of conviction [ted 26th July 2001 passed by the First mmm ammm WW,W§,W Additional Sessions Ju 459/2000, whereby, the holding the accused/a o§ence punishable unde them to undergo imprisonment for life and to pay a nne of Rs. ment of fine to further undergo RI for six the murder of Manglu, father of accused dge, Bastar at Jagdalpur in S.T. No. learned Addiiional Sessions Judge, after ppellants guilty for commission of the r Section 302 of the IPC sentenced each of 200/ -, in default of pay. months, for committing Rukdhar. 2. Case of the prose( about 1.00 p.m., Rudm' police station Chhote Dc of Village Badgaon and agricultural operation a1 9.00 p.m., in the night, Z Mamta, wife of co—accust providing him food and which, Rukdhar pushed with kicks and fists on also attacked Manglu frightened and came ou - tree Whole night. In the elder son Choudhar who :ution in brief, is that, on 22.09.2000, at Bai, Widow of Manglu lodged report in the ngar to the en'ect that she is the resident she is earning her livelihood by doing 1d labour work. On 21.09.2000 at about aer husband Manglu demanded food from :d Rukdhar and asked that Why she is not Manglu shot an arrow on Rukdhar upon Manglu on the ground and attacked him temporal region, chest and back. Mamta She became t of the house and sat under the mango morning at about 7.00 p.m., when her. was residing in Village Kanera along with Village Kotwar Mehattar ame, all the three entered 1% the house. They saw that Manglu W s lying dead and both the hands and legs \ with hands and kicks. \ m W Ei 200 man-ans (W) WWW WW WW awffanm '2,»- WW, Wm, W3? Them were injun‘es on the forehead, were tied with a rope. temporal region, shoulde r, back and stomach. Manglu has been murdered by her son R1.kdhar and his Wife Mamta by attaking with kicks and nsts. Re Chhotte Dongar registe c Rudni Bai. She also gave the F‘imt Information Report EXP—7. He left for the scene of occ panchas, prepared inqu seized the mpe under E mortem examinau'on to Where Dr. M.K.Su1ya and opined that the m the chest and homicidal report EX.P- 15. After co was hled in the C Narayanpur who, in tul Judge, Jagdalpur from w Judge, received the case ( ving this report, the SHO police sfation the merg intimation Ex.P- 10 given by 3. The prosecution in accused persons examint the accused persons was material appearing against them in the prosecution evidence ant order to establish the charge against the :d as many as six witnesses. Statement of recorded under Section 313 of the Cr.P.C. in which they denied the l stated that they are innocent and had been falsely implicated 11* the crime in question. \\ nence. After giving notice EXP-5 to the st EXP-4 on the body of Manglu. He .P— 13, Body of Manglu was sent for post munity Health Centre, Narayanpur, hi (P.W.-6) conducted the post mortem of death is asphyxia due to injury over in nature. He prepared the post mortem pletion of theainvestigation, charge sheet of Judicial Magistrate First Class, ‘n committed the case to the Sessions here the learned First Additional Sessions )n transfer for trial. r i w o o m s W m Vi 200 awn-m (W) WWW ammm WWW WW§WW %sif%man%¥r WW, §ww 5.,W Wm w: 200 Wm (W) WWW amwm WWW mmwwwm %aifaném%$ wk, 6. Mr. Shailendra Dul: of Manglu. Moreover, RW he conducted the post 1 September 2000 and saw left jaw, right eye and a1 ante mortem in nature. There was swelling on t congested, right chamber 3rd, 4th and 5th ribs W( a asphyxia as a msult of i ribs. The death was hom1 View of the above medic evidence, it is established that the death of Manglu was homicidal 4. Learned‘AdditionalvSessions Judge, after hean'ng tha counsel for the parties, convicted aforementioned. ‘ and sentenced the accused persons as 5. We have heard Mr. Shailendra Dubey, counsel for the appe'nants and Mr. Sandcep Yadav, Dy. Government Advocate for the State, ey has not disputed the homicidal death .—6 Dr. M.K.Su1yawanshi has stated that nortem on the body of Manglu on %th that there Were injuries on the left eye, )rasions on the knee. The injuries were plotted blood was present on the head. 0th sides of the chest. Wind pipe was of heart was full of blood and the left side :Ie fractured. The cause of death was njmy over the chest and fracture of the cidal in nature. The report is Ex.P- 15. In ' nature. 7 . As far as the comp licity of the accused persons in the crime in question is concerned, \\ in this case, eyewitness P.W-3 Rudni Bai, WW,WE,W wife of the deceased and hostile to a certain extent between her husband am a11d left the house therefo the accused persons. 8. In the crass-exam Pleader, she has stated tl law Mamta that Why she atrow on her son Rukdhar say that Rukdhar and her 9. The other ground to persons'in the crime in judicial confession before I that Rukdhar came to him and said that he has murdered his enquired from him as to why he has is father Manglu, then he disclosed that ;hot the. arrow on him that is Why he : did not disclose that he sustained any the same was shot on him. In the cross ant Government Pleader, he stated that n by him to the Investigating Odicer and :n Manglu fell down on the ground, his )y rope and Rukdhar attacked him with father Manglu. When he committed the murder of l: his father was about to s attacked his father, but ht injury by the arrow when examination by the Assist statement EXP-1 was give in that he stated that Wht hands and legs were tied 1 mother of accused Rukdhar has turned and has stated that there was a quarrel 1 son Rukdhar. She became hightened re, she did not saw the bean'ng given by nation by the Assistant Government at her husband asked her daughter~in— is not providing him food and he shot . She further stated that it is incorrect to daughter in law attacked her husband. establish the involvement of the accused quesu'on is that Rukdhar made extra ’.W.-1 Manbodh Ram. P.W.-4 had stated m m H1 200 Wm (W) WWW 3211mm mmm r "S’ .WW WWQK $WW€¥I mm (W) mmm ammm WW WWR %a‘f%ma11%$r 11. P.W.-4 Jugru has Manglu disclosed him th‘ and made extra judicial confession that he along with his wife were going to the police station r not disclose that Why he e mafsam S 4n, the kicks and $ts on the which Manglu died. He f1 that deceased Manglu threatening him that is WI his father could have mur 10. P.W.-2 Sukman h Manglu disclosed him husband after tying his h hostile. mouth, stomach and chest as a result of Lrther stated that Rukdhar disclosed him and arrows and was holding bow 1y he attacked him. Had he not attacked, dered him with the arrow. s stated that Rudni, wife of deceased at accused Rukdhar has attacked her ands and legs whereas Rudm' has turned stated that Rudni Bai, wife of deceased at accused Rukdhar came to his house 12. In the cross exan informed him that in the demanded food h‘om his that why she is not provi( the alrow which hit him right leg of his three mi overthrow his father, 1i attacked him with kick \ and he was standing on the road. He did Lttacked his father. iination, he has stated that Rukdhar night at about 9.00 p.m., when Manglu wife, his father came and asked his wife ling food to him and saying this, he shot in the right 1mee and thereafter hit the mths child which enraged him and he ed his hands and legs, thereafter he w and hsts. Therefore, in View of the WW,W,W mm m 200 WW, m, WEI @ svidence of P.W,-1 Manb h Ram 8r, P.W.-4 Jugrugit is established ckcd Manglu with kicks and $ts as a that accused Rukdhar a result of which he sustain ,ed homicidal injuries. \ 13. In the cross examination of this Witness, the defence has not been able to elicit any circumstance which discredits the evidence of this Witness and in View of the above extra judicial confession made by accused Rukdhmr before the independent witnesses, it is established that he is the 14. s far as co—aocu evidence that she, in aJ therefore, her conviction sustained. question regarding the odence committed 15. Now coming to the by accused Rukdhar is concerned, Mr. submitted that the extra is to be mad wholly and these two independent w- Why his Wife is not prov after hitting his leg hit th in the hrst instance, he 1 thereafter he attacked t against the accused does \ author of the crime in question. sed Mamta is concerned, there is no 1y manner, attacked the deceased and under Section 302 of the IPC cannot be Shailendra Dubey judicial confession made by the accused in that accused Rukdhar stated before Ltnesses that his father, after asking that iding food to him, shot the mow which e leg of his child, Which‘enraged him and ied the hands and legs of his father and Vith hand and hsts. Therefore, odence not travel beyond 304-11 of the IPC. A W m Hi 200 Wm (13W) WWW ammm WWW ““1,— mmM‘s’ém §§aimm WW,W§,W \~\ \ 16. On the other hand, learned State counsel supported the judgment of the trial Comt. 17. From the evidence of the witnesses which has come on the record that infact Manglu (since deceased) father of the accused demanded food and saying that why Mamta—co-accused and wife of the accused is not providmg food to him, he shot the arrow, which in the hrst instance hit on the leg of the accused and thereafter hit child of the accused which enraged the accused and in a heat f passion, all of a sudden, he attacked anglu with kicks and f ts. Therefore, the case of the accused is covered by Exception IV f Section 300 of the IPC. Moreover, there is nothing on record to tablish that he attacked his father with the intention to cause hi death and the manner in which he tied the legs and hands of father and attacked with kicks on the vital part of the body, i.e chest as a result of which the right side of 3rd 4‘11 and 5th ribs w fractured and lung was ruptured, shows that accused was having the knowledge that the manner in which he was attacking his fa er may likely to cause his death. Thus, the conviction of accuse Rukdhar under Section 302 of the IPC r and sentence imposed u on him cannot be sustained. on the leg ofthxee mon 18. In the result, the a peal of Mamta (co-accused) succeeds and the same is allowed. He conviction under Section 302 of the IPC \ M e \ W m WL 200 3mm (W) mmfw’m WWW mmm 55f mmefwm *aimm @ mm,m,%mg{ mm m 200 WW (W) WWW ammm WW fz€WW %a=if%man%¥1 her under that S€ction are set aside. It Her bail bonds are discharged. mmm Fa,— and sentence imposed u is stated that she is on 19. The appeal of accu ed/appenant Rukdhar is partly allowed. His conviction under sec n 302 of the IPC and sentence imposed upon him under that Sec 'on are set aside. Instead thereof, he is convicted under Section 304—II of the IPC and sentenced to . It is stated that the accused is in and themby he has already served the sentence. Therefore he be set at liberty forthwith if not required in undergo RI for seven y detention since 2209.2 n . b p 0 e any other case. Sd/— Sd/- L.C. BHADOO T. P. Sharma Judge Judge ’