rm ¢ & Qx , A. :m\g% @ APPEAL ?£!SONER s ( Ne \2q4/77 l llllll III!!!” CF0000059546 No 927 Father’s Na‘mc‘ W_M_EE\ ’ Resldent m § %’”:J$‘EKW’§ , Age ~D©€§ Sentenced to W WW WWR on 91 $1 I )E f § , Q Z Mg Under Secuon 302 Wt ‘E‘ %‘ by A @U'C’ Cw Wmm‘w W m$g41 KrMEWZQ It is explamed to the pnsoner that 11f he states or wxshes to be represented ‘x > by a legal practitibner .the Appellate Cotirt willnot proceed With the base fof"” seven days unless thelegalpractitioner appears If the legal practitioner does not appear within seven days ‘he may be heard at allif legal practitioner the court ;may proceed at once w1th the case and w1llnotbe obliged to giveabearmg to a’ry’ gal practitioner who should appear a 2. Date of which copy received :- te of application for copy of Judgement :- ‘N «9 e Pa \ I” f «q7 /Y. H47 e .- $ l, 1' e 3. Date on which appeal sent :- 4. Whether the prisoner wished to b represented or not :— Yes we” No. 1. $8 Name 377mg W £l° %r Continued in (Ce Ml Jail “W r " 93m r - Wmczaaer Dated /? ////a7 I the CHIEF JUDICIAL MAGISTRATE m5 w tegether “11h a copv of Judgen ent or order passed 1n the case for favour of nsmissmn to the proper Applleate Court Su perm §’ ,gmu [Sub Jan ara‘ttt Date of receipt in C. J. M. O$ce. Zr ‘I2eq<) Date of receipeof record to accompany. )c Memo of Appeal of the Appellate Court )0 No 5 £ dated 5”} I Forwarded to the Tammmtgzlm lGtt; §aité of receipt in Applie‘ate Cour WT r—\%. : ’ \' Vgm v t " t ,i r 7. .i GH COURT OF CHHAGGISGAR AT BILASPUR CLAEgeal No. 7914 1998 Madvi Dula Vs. State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION /,/ x k Sd/~ DILIP RAOSAI—[EB DESHMUKH Judge W ‘“*s‘d‘/T"‘W>* L.C. BHATEOO M Age 02 (#962065 Post for 21. 06,2005 ‘ Sdl- ‘syDilip Raosaheb Deshmukh: , Judge v HIGH COURT OF CHHAGGISGAR AT BILASPUR ¢r.Appeal No. 791 I 1998 Madvi Dula Vs. Stats of Madhya Pradesh (110w Chhattisgarh) CORAM : HON’BLE SHRI L.C.BHADOO, HON’BLE SHRI DILIP R. DESHMUKH, JJ Smt. Kiran Jain, counsel for the appellant. Shri U.N.S.Deo, G.A. for the State. JUDGMENT Per Dilip R. Deshmukh, J. 1. This appeal is dimcted against the judgment datod 10. 1 1. 1997 in session tn'al No.244/ 1997 whereby Shri R.K.Shn'vastava, Sessions Judge, Bastar (Jagdalpur) has convicted the accused appellant under Section 302 I.P.C. for committing murder of Madvi Hadma on 12.2.1997 in Village Potenar, Ichhawada, RS. Bhairamgarh, Bastar and sentenced to undergo imprisonment for life. 2. It is not disputed that the appellant and deceased Madvi Hadma were brothers. On 12.2.1997 there was “Chatti” (sixth day celemony after the birth of a child) in the house of Podiami Lakma. The accused—appellant, deceased Madvi Hadma and witness Madvi Dula (P.W. 1) were returning after the ceremony to their village at about 8. P.M. On way, the accused appellant said to his elder brother Madvi Hadma (deceased) that although both had worked 1 aa:-:& @ for the agricultural land, Madvi Hadma had got the Patta made 6xc1usive1y in his name without giving any land to him for earning his livelihood. Madvi Hadma said that the land was recorded in his name, and therefore, he would not give any portion of the land to the appellant. The appellant got agitated and took out an iron ‘Churi’ from his waist and stabbed his brother Madvi Hadma in the chest and rib. Madvi Hadma fell down and succumbed to the injun'es on the spot. Appellant ran away with his ‘Chun". Witness i Madvi Dula P.W. 1 saw the entire incident. 3. F.I.R. was lodged by witness Madvi Dula P.W.1 in Police State Bhairamgarh situated 22 kilometers away horn the place of occurrence at 10.30 A.M. on 14.2.1997. Dead body of Madvi Hadma was sent for postmortem examination by Shn' M.L.Sharma, Assistant Sub-Inspector P.W.6. Dr. A.S.Sendra1n P.W.S who conducted the autopsy on deceased Madvi Hadma found an incised stab wound on the left side of chest at the level of 6th and 7th rib in upwaid direction size 5" x 1 1/2” X 4 1/2”, one penetrating wound on the left side of chest at the level of 5th intercoastal space size 1 V2” X V2” x 2" and a contusion on the right side of face size 5" x 3". There was fracture of 6th and 7th rib of the left side of chest. The chest cavity was congested and ruptured. Left lung was also ruptured with large quantity of blood on the chest cavity. Apex of the heart was ruptured and profuse blood was found on the chest cavity. Dr. A.S.Sendram P.W.3 opined vide report EX.P.6 on 15.2.1997 that the injuries caused by hard and sharp object were ante mortem and caused within 60 to 64 hours Iv Wig” ' v \/7)1M4v: i before the autopsy. Death was due to syncope, due to rupture of heart, due to injury No.2 and was homicidal in nature. 4. On 16. 02. 1997 A. SJ. M. S. Shanna recorded the memorandum Ex.P.8 of the accused appellant and at his instance recovered one iron Churi with blood like stains vide Ex.P.9 on 16.2.1997. Dr. A.S.Sendram after examining the ‘Churi’ sent to him from RS. Bhairamgarh opined on 27.2.1997 that injuries sustained by the deceased could be caused by the ‘Churi’ seized from the accused appellant. After completion of invesijgation, the appellant was prosecuted for murder of Madvi Hadma. 5. The accused appellant abjured his guilt and did not lead any evidence in defence. 6. Prosecution examined eye witnesses Madvi Dula P.W.1, Madvi Bodo P.W.2 Widow of the deceased, Dr. A.S.Sendram P.W.3, interpreter Lachhu Ram P.W.4, Madvi Joga P.W.S and A.S.I. M.L.Sharma P.W.6 in support of the prosecution case. The trial Court relying upon the unrebutted testimony of the witnesses examined by the prosecution came to the conclusion that the death of Madvi Hadma was homicidal and was intentionally caused by the appellant. It also found that the accused had the motive to kill Madvi Hadma since he had the grievance that the deceased brother had not given to him any land to earn his livelihood. Accordingly, the trial Court convicted and sentenced the appellant as shown in paragraph 1 (supra). 7. Learned counsel for the appellant has assailed the impugned judgment only on two grounds. Firstly, that the testimony of ,2 "on V r / a rf6;’\’}_/ / I’ ”"’ " . r r .7 ' v X/ykgy wimass Madvi Dula P.W. 1 is not reliable as he could not have seen the occurrence because it was dark at the place of occunence. Secondly, in the alternative it was contended that the oii‘ence was committed without deliberation upon sudden annoyance and the intention to cause death of Madvi Hadma was absent. Therefore, at the most the accused appellant could be found guilty of an oifence under Section 304 Part II I.P.C. Learned counsel further contended that the accused appellant was in jail since 16.2.1997 and should be awarded lesser sentence. It was also contended that the appellant and the deceased had consumed liquor at the ‘Chatti’ ceremony, and therefore, the odence would fall under Section 304 Part II LRC. 8. On the other hand, Shri U.N.S.Deo, learned Govt. Advocate laid stress that the prosecution had led legal, reliable and unimpeachahle evidence in support of the charge under Section 302 I.P.C. The presence of witness Madvi Dula P.W.l at the scene of occurrence was not disputed in cross-examination and his testimony is wholly reliable. Dr. A.S. Sendram P.W.3 has established that Madvi Hadma had died a homicidal death due to stab injuries in the chest. The very fact that the injuries were inhicted by a sharp knife on the chest of Madvi Hadma with such force that the 6th and 7th rib on the left chest were fractured, left lung and the apex of the heart were also ruptured clearly established that the injuries were inilicted with the intention to cause the death of Madvi Hadma and with such laiowledge that they were likely to cause death. The trial Court, he urged, has / ’ . Vx/wM rightly beHeved the prosecution witnesses and convicted the accused appellant under Section 302 I.P.C. 9. We have considered the submissions of learned counsel for the appellant and the Government Advocate. We have also perused the record and. have also minutely gone through the evidence led by the prosecution. So far as the tesh‘mony of Madvi Dula P.W.1 is concerned, he is lelated to both the appellant and the deceased. He does not bear any grudge against the appellant. His presence at the place of occunence has not been denied in cross-examination. On the contrary it was suggested by the defence that this witness along with the accused appellant and the deceased had consumed liquor and food at the house of Podiami Lakma. The mere fact that the accused appellant and the deceased had consumed liquor at the ‘Chatti’ ceremony does not lead to the conclusion that they were so heavily drunk that the accused appellant would not have known What he was doing when he assaulted Madvi Hadma with the ‘Churi’. It is pertinent to note that in the Post-mortem of Madvi Hadma presence of alcohol in the stomach has not been conhrmed. 10. Madvi Dula P.W. 1 has deposed that while returning from the ‘Chatti’ ceremony with the accused appellant Madvi Dula and the deceased Madvi Hadma, the accused had said to the deceased that he had given him lesser land whereupon Madvi Hadrna had said that whatever lands could be given have been given. Upon this, the accused took out ‘Chun" n‘om his waist and stabbed Madvi Hadma twice on the chest and ran away. Madvi Hadma fell down “(any and died instantaneously. He then went and told Madvi Bodo P.W.2 that the accused had kiHed her husband by ‘Churi’. Madvi Bodo P‘WQ has also coxroboratcd this witness completely. 11. As regaxds the argument that Madvi Dula P.W.1 could not have seen the occurrence since the incident took place in the dark night is concerned, it has no force. It is common expen'ence that village folk have the ability to see clearly in darkness. Since they are not victims of envimnmental pollution due to urbanization and can see and identify clearly even though there may not be street lamps or lights. Witness Madvi Dula P.W.1 on being conn‘onted with this has clearly stated in cross-examination that at the time of occurrence it was not so dark that he could not identify. He has given a very plausible explanation that since he was going with the accused—appellant Madvi Dula and his brother deceased Madvi Hadma he could see the occurrence and identify the accused appellant. This testimony is wholly reliable and inspires full confidence. 12. So far as the delay in lodging the F.1.R. is concerned, the incident took place at about 8.00 RM. on 12.2.1998 and the F.I.R. EX.P.5 was lodged at 10.30 A.M. on 14.2.1997 at Police Station Bhairamgarh which is situated 22 kilometers west of the place of occurrence. Since in the interiors of Bastar them is no mode of conveyance, the entire distance has to be covered on foot. Thus, the delay in lodging the F‘.I.R. is fully explained. 13. The testimony of Dr. A.S. Sendram P.W.3 establishes beyond doubt that Madvi Hadma had sutained two penetrating stab t ‘7 WV¢£€ y rorv w: / ' wounds in the left side of chest which were caused by a hald and sharp object. The glavity and details of the injmy sustained by Madvi Hadma has aheady been noted in paragraph-3 (supra) which leaves no manner of doubt that Madvi Hadma had died a homicidal death. 14. The wholly unrebutted tesh'mony of A.S.I. M.L.Sharma P.W.6 proves that ELR. EX.P.5 was lodged by witness Madvi Dula P.W. 1 on 14.2. 1997 Wheleupon he had taken the accused in his custody who had, uyon being questioned stated that he had kept the ‘Churi’ in his waist and had produced it. Seizure of ‘Churi’ EX.P.9 has also been fully established by the testimony of this witness 15. The only question which now remains to be seen is the nature of oEence committed by the accused appellant. The piosecuh'on evidence clearly shows that the accused had the grievance that his brother Madvi Hadma had not given him suiiicient lands and upon being asked Madvi Hadma had refused to give any. This had agitated the accused appellant and he assaulted Madvi Hadma by a sharp knife i.e. ‘Churi’ twice on the chest with such force that the 6th and 7th ribs of left side chest were hactured, chest cavity, left lung and apex of the heart were amount of force with which the accused appellant innicted two penetrating stab wounds on the left side of chest clearly leads to the irresistible inference that the accused not only intended to cause the death of his brother Madvi Hadma but had also indicted i r the_inju1ies with fun knowledge that they were likely to cause death of Madvi Hadma. 16. The unrcbutted tssh'mony of M.L.Sharma P.W.6 establishes beyond doubt that one ‘Chun" was recovered at the instance of the accused appenant and was sent to P.H.C. Bhairamgarh and Dr A.S.Sendram P.W.3 has also deposed that injuries sustained by the deceased could be caused by the knife which was sent for examination from P.S. Bhairamgarh. 17. Considering the background and the circumstances in which the incident took place, the intention with which the accused appellant inllicted fatal injuries on the vital palt i.e. left side chest of the deceased Madvi Hadma and the amount of fome with which the injuries were inflicted, we are unable to subscribe to the arguments of learned counsel for the appellant that the odence falls under Section 304 Part II I.P.C. We accordingly hold that the learned trial Judge has rightly convicted the appellant under Section 302 of the I.P.C. 18. In the ultimate analysis, this appeal has no substance and is accordingly dismissed. Seized articles i.e. soil, Churi be destroyed t.’ forthwith. Sd/— Sd/- l ‘izDilip Raosaheb Deshmukht L.C. BHADOO l Judge yuJ‘ i Judge 1 i tr ,.