-78 ^T^T ?FT ^l<=ft ^?T STT^T ^^i<^ ^E£Tr^Hi^, ^-y4 Ko, Rj^i-yy •qm^r g^qf^..."0'5".'".^"'"^^^"/""^ 200^ 3n^?r XR^ (i^I^^y) T '^nw^ifeT APPELLANT: (in Jai!) cbl^td^t'l 'W^f '8?,fecSt iFal^K •^3?iRR3?Y^l Ram Awadha, S/o Nepal Yadav, aged 45 years, Occupation: Agriculture, R/o Kesara, P.S. Kamleshwarpur, District Surguja • Versus - RESPONDENT: j State of Chhattisgarh (Appea! under Section37'4{ (2) ofthe Code ofCriminal Procedure) Divislon Bench: Hon'ble Mr. LC. Bhadoo and Hon'ble Mr. Sunii Kumar Sinh^ 21-9-2007 Mr. Abhay Tiwari, counsei Mr. Satish Gupta, Deputy Orai judgment dictated on|Dais. .JJ. for the appeliant. Sovt, Advocate forthe-State/respondent. L.C. Bhadoo. J; - The accused/appeiiant ha preferred this appea!;against the judgment of conviction and order of senter^e dated 31sl January, 2002, passed by the 3rd Additiona! Sesssons Judge, ^mbikapur, in Sessions Trial No.404/2002, whereby learned Additiona! Ss^sions Judge after holding the accused/ appeiiant guiity for commission <{)f offence under Ssction 302 of the l.P.C., sentenced hlm to undergo impris^ Case of the prosecution, 1| p.m. Tirdhari (since deceased) v^ that time accused Ram Awarih mmentforlife. h brief, Is that on the fatefui day at about 5 ^as sitting in the courtyard of his house, at lajons with hi^ %on Dilwar cawe-there and XI.HC—78 ^^^ i^iicn ^^T'STT^T iCTW 3:c^T -AII^I^, ^>T{l^<te, fs)<yl>l'y^< C^,A.^-^-.O/ •qm^IT ^roN? •-••••"••"••""••"••••—••7"""--^ 200 3^?T XR^ (4<s<^<^) '^ri^R ^if^T ^T^r -z^- said that his cow is damagini showed hjs innocence, whereu ^Rid^il^ 'HP^ '^_<fe(st '?f^R5R ^siRR 3?i^r 3 their crop daily, on which the deceased pon on being asked by son of the appeiiant that the deceased be attacked, ^ccused/appeilant Ram Awadh took axe from h|s son and attacked Tirdhari cj down and died. The matter wa^ Station on the same day on intimation Ex.P-2 was recorded of occurrence and prepared site n his chest as a result of which Tirdhari feii reported by Urvashi Bai (PW-1) to the Police fl/hich FJ.R. Ex.P-1 was registered. Merg The investigating Officer ielt forthe scene [pian Ex.P-3. Sits Pian Ex.P-4 was prepared by the Patwari. The investigat|ng Offjcer after giving notice Ex.P-5 to the Panchas, prepared inquest Ex.<3-6 on the body of Tirdhari. The accused gave memorandum Ex.P-7 duri|ig poiice custody and in pursuance of that axe was selzed under Ex.P-8. Fpiain soii and biood stained solj were selzed from the piace of occurrence unjder Ex.P-10. Body of Tirdhari was sent for post-mortem examination to Go\j 14 where Dr. V.P. Pats! (PW-1] cause of death of Tlrdhari was were sent to Forensic Science U was received. Seroiogist report ^ After compietion of investil ernment Hospitai, Narmadapur undsr Ex.P- I) conducted post-mortem and opined that as a result of severe]bteeding and shock, nature of death was homscidal. Ife prepared report Ex.P-19. Seized articies boratory, Sagar, from where report Ex.P-15 x.P-19 was aiso received. ^ation, charge sheet was filed in the Court of Chief Judiciai Magistrate, Amljiikapur, who in turn committed the case to the Sessions Judge, Surguja, fr| Judge. Ambikapur, received the c )m where iearned 3rd Addltionai Sessions 2se cn transfer for triai, XI-HC—78 ^TT^T ^T Rrl[<=h ^T^T ^n^T^R'RW 'SvSf *^|-^|<^q, ^rli'y^KS, fs)01'y^< _.....&.A...^.:. TRI^dl •sb^l<t> •"—••••-—••••—• ^; 2 ../.^^^ ^ 3n^?rir5[^ (4c<fl<s<<^) '^TTWHft^r 3?n^r -3- The prosecution in order| examined 11 witnesses. Staterfrient Section 313 of the Cr.P.C. in whi' the material appearing against h| stated that on the fatefui day th^ crop, he asked Tirdhari to keep damaging his crop, Tirdhari damaged the crop.and started| Tirdhari came and attacked hinl hlmself he started moving the ax^ attack him, In that process the| defence, he has examined BeIdo|Sai (DW-3) & Kanhaiya La! Yadav (D^f bectame Sessl4ns Learned Additiona! counsel for respective parties, appeiiant as aforementioned. We have heard IVIr; Abhat and Mr. Satlsh Gupta, iearned D^puty respondent. Mr. Tiwari has not dlspute(| Dr. V.P. Patel (PW-11) who con<|ucted has stated in his evidence that h^ the body of Tirdhari, there was cms. in width ob!ique!y piaced or| 3rd. 4th, 5th & 6th rlbs were fracti|red, ct)i^t<rt^1<i ^i^<riT ^fe^ <F3i^i< ^^tRnTW^T to establish charge against the accused of the accused was recorded under ich either he pleaded innocence or denied |m In the prosecution evidence. He further cow of Tirdhari was grazing his standing his cow tied, when he said that his cow is angry and dsnled that his cow has quarreliing, when he resisted, deceased with Lathi on his head, In order to save in the air and Tirdhari ran towards him to iaxe hit on the chest of TIrdhari. in his i|Sal (DW-1), Dr. V.P. PateJ (DW-2), Parvati 1/V-4). Judge after hearing the arguments of convicted and sentenced the accused/ Tiwari, iearned counsel for the appeiiant Govt. Advocate on behalf of the State/ the homicidal death of Tirdhari, Moreover, post-mortem on the body of Tirdhari conducted post-mortem on 10-10-2000 on stab wound In the size of 9 cms, iong, 4 chest cutting sternum as a result of which 7th rib was hajf cut and biood vessels XI-HC—78 3?TT^?T ^T f^rlich j ^T^T 37K?T5FRW 3wT ^IHI^, ^tO'y'i^, ts)<7'>l<l^< ^l^dl *^lcb^...^...A,-fo,^a.,.3^^ ^ 3n^?r XR^ (4G<?lc<<^) ^ciTW^f^T 3?n^?r were also cut. He has stated haemorrhage and shock, death evidence of Urvashi Bai (PW-1) 11), it is estabiished that the deal As far as invoivement deceased is concerned, Mr, Ti^f judgment of the trial Court. ^ deceased has stated in her evidt she a!ong with her husband we( Ram Awadh along with his son cattie is damaging their crop damaged by the cattie, whereup) talking too much". Dilwar asked took axe from the hand of DIIwarl of her husband, on which she reached on the spot and Dilwar examination, defence has not fc^ discredjts the evidence ofthis wit Chhotelai (PW-2) has ais' day at about 5 p.m. he was at hi of Tirdhari, therefore, he went th( coming out frorn the house of Ti hls house, he was writhing in p; enquired from Tirdhari as to wh that Ram Awadh attacked him wi chl^<(d41r1 'RT^ff ^\fet3t <Pn<^i< ^siRman^T that cause of death was on account of /as homicidai in nature. In view the ocular ind medicai evidence of Dr. V.P. Patel (PW- of Tirdhari was homicidai in nature. the accused/appellant in attacking the /ari has not challenged this aspect of the loreover, Urvashi Bal (PW-1), wife of the mce that on the fatefui day at about 5 p.m. \e at thelr residence, at that time, accused )ilwar came to their house and sald that his |n which her husband said which crop is ?n accused Ram Awadh said that "you are iim to attack Tirdhari on which Ram Awadh land attacked wlth the said axe on the chest ^tarted crying. Hearing her cries, her son ittacked him a!so wlth Lathi. in her cross- >|een able to eljcit any circumstance which icss. stated in his evidence that on the fatefu! residence, he heard cries from the house ^re and saw that Ram Awadh & Diiwar were r^hari, Tirdhari was lying in the courtyard of |in, his body was drenched with blood, he |t has happened on which Tirdhari replied 1 axe and he will not survive. Then he saw XI-HC—78 ^TT^T ^T f^-ljch | ^T^T ^^\ sti^icf) T^T -^WW^, ^y^KS) {sf^WJ,< CA.. h- Wb. ri3JCJ ^QCS^- ^m^n- •S^^K ••••••••••••••••••••-••••••••• •i-——"--^ 200 3^?T ^RR? ( 4c<?Tl<s<<i? ) '^TT^R "^Rf^T 3^?T that Vinod & Urvashi were takin^ care of Tirdhari. There was injury on the chestofTirdhari. (P\|V Therefore, the ocular evid^nce by the evidence of Chhoteiai deciaration. Moreover, Chhotela! house of deceased. Hence, attacking Tirdhari is established ^nd or infirmity in the judgment of the | of Urvashi Bai (PW-1) is corroborated ti|V-2) before whom Tirdhari made oral dying |saw the accused persons going out of the ^volvement of the accused/appeilant In to this extent we do not find any illega'ity Irial Court. Mr. Abay Tiwari, learned facts the prosecution has not attacked the deceased with intelition cow of the deceased was dama^ing Awadh took the cow to the hous4 about the damage done to his damaged the crop, some aitercatj of passion In a sudden fight, the of a sudden attacked Tirdhari who accused/appeliant. Learned against the accused/appeljant the I.P.C. cM^f<yi<ilri ^iH<rff '^,'fec3t <RI<^I< ^? 3?iRw ^TT^T |counse! for the appellant, argued that on been ab!e to estabiish that the accused to cause his death. Moreover, when the crop of accused Ram Awadh, Ram of Tirdhari, when Ram Awadh complained 4rop, Tirdhari refused that his cow has not |on took place and in that process, In a heat laccused snatched axe from his son and al! was none else than reai brother of the cbunsel submitted that therefore, offence dc|es not travei beyond Sectlon 304 Part-1 of On the other hand, learr^d Deputy Govt. Advocate supported the judgment of the trial Court. Facts of the case are alriiost admitted. It is admitted fact that the deceased was reai brother of the accused/appeliant. On the fateful day cow XI-HC—78 W^T ^T f^-lich | '^8H '3TI^T5CTT^F Soma "^^T ^|<4t<^q, t$T{1^<|<S, (&1^1^^< ^l^dl (b*{|cb_ ...Cx-..A'....^.:..M^/..^.oa.2.T^ 200 W^T 'q^3F ( 4c<flG<<i^ ) ^^iTW^rf^T^T^r of Tirdhari entered the standing c|r that the cow of Tirdhari was dan^aging residence of Tirdhari and complaihed crop, on which Tirdhari replied w|iich process some aitercation took pli without any preparation & pre in the hands of Diiwar, his son, plah arld |rop ofthe accused, when the accused saw his crop, he brought the cow to the that the cow of Tirdhari is damaging his crop was damaged by the cow, in that and in a heat of passion all of a sudden, the accused snatched the axe whlch was attacked the deceased. alce in view of the above facl offence against the accused doe^ i.P.C. [s, we are of the considered opinion that not travei beyond Section 304 Part-I of the !n the result, the appea! o1| and sentences imposed upon th|e the I.P.C. are set aside and h^ thereof, the appe!!ant is convictec| sentenced to undergo R.i. for t^n detention since 9-10-2000 till tod^y, ofthe above detention period imp^sed Sd/- L.C. Bhadoo Judge <=bl^I<n<i1Tl '^ITR^ff ^Fs^l ^^K '^3fl?m 371^1 the appeliant partly succeeds. Convlction accused/appellant under Section 302 of is acquitted of the said charge, instead under Section 304 Part-! ofthe I.P.C. and years. The accused is said to be in /, therefore, he shal! be entitied for set off upon him. _-—— Sd/- SunilKumarSinha Judge