4.‘_-ywA a A 15-é-2007 Miss Sofia Khan; counsei f< Mr. U.N.S. Dee, Addifio: respondent Om} judgmenf dicfufed on Dais. LC BHADOO J. This appeal is direci‘ed agains‘l’ T sen'rence dafed 13” December, 2 Judge, Manendmgarh in Sessior Add‘lfional 5essions Judge affer oe Judgmen‘i’ of conv§c+ion and order of {000 passed by The Addi’rional Sessions s Trid No.227/2000 whereby learne commission of offence under $e hoiding The accused/appeilanf guii‘h/ for ieixi, x 1r fhe appeiianf. ml Pubiic Prosecutor or me S‘m‘te f / cfion 302 of fhe I.P.C., for commi'l'i'ing d x WW, Wm,W W m . g . m 200 ( 311w m (W) WWW amWm motifs? am‘m mmswm % 311%?m APPELLANT: ' Pujori Ram, 5/0 Akalu Ram, {In Joii) Aged abou‘f 35 years, R/o Viiiage: Khadgawa, RS. K‘nodgowa, Dis‘rric‘r Ko rea (C.E.) - Versus — QESPONDENT: Sm're of Chha‘H’isgorh, Through P.5. Khadgowo, DisTricT Korea (€.G.) D§vision Senth: Hon‘ble Mr. LC.‘ Bhadoo and Hon'ble Mr. Dhirendm Mishra J3. ‘rhe murder of Surya Kumari, sen‘renc'ed him f0 underga imprisonmenf for life and pay a fine of Rs.500/-, in defauh' cf payment of fine To furfher undergo 5.I. for six mon‘rhs. 2. \ Case 0f The prosecufion, in briaF, is fhaf on The fm'efui day Le. 13-5- 2000 m“ abouf 8 p.m. Lakhansai along wi‘i‘h his wife Surya Kumar'i was ramming from ihe pond afier faking ba‘i’h, house of fhe accused was on frhe way, when fhey wereipassing #hroug‘n fne sTree‘r near 1*‘ne hause of fine accused, fhey sow fho'i‘ fha accused was Taking meal, Lakhansai enquired from The accused as 1’0 e‘rher he is Taking meai, on which fine accused became angry and si‘ar'l‘e abusing Lakhansai. Wife of Lakhansai Surya Kumari (since deceased) dvised The accused no? i0 abuse. On fHis, The accused wen? inside 'i'h house and broughf Farsa (baffle axe). In The meani'ime, hearing The co mofion, neighbour Ashabai (‘9 Munnibai aiso came cu? of ji'he house 'Th accused smacked Surya Kumar‘i wi'ih ihe baffle axe on her neck as resulf of which she feli down on fhe ground‘ biood- sfarfi'ed oozing ou‘l’ of the neck and she succumbed fo fhe injuries susfained by her, insi'an‘r eousiy. 3. The mai’Ter was reporfed by La hansai in Poiice Sfa'fion: Khadgawa and repor? EXP-2 was regis'i'ered. The e scene of occurrence, affer giving nofice To ‘i'he Panchas, he prepar d inquesi‘ EXP-5 on fhe body of Surya based on fha‘r, firsi’ informafi Invesi'igafing Officer lefi’ for h o . . mac—78 WW, may,W 2 W m G) '.'.§ v wai 200 ( W W (W) ' ' mEE; ‘ ’ mwmwm 3W‘WW . animm ‘ XI-Hc—78 mm mi 200 Wm (W) WWW ammam‘m? WWW WWiiz‘ém %$i‘iimm lood s‘mined soil and piain soil from fhe Site plan EXP-1 was prepared by fhe "ya Kumari was senf for posf-morfem anfr'e, Knadgawa, where Dr. RP. Singh xnd prepared The posf-mor‘iem repor‘i f deafh is haemorrhage shock due To e death was homicidal in na'i'ure. The i under EXP-9 a‘r ‘ihe insfance of 'ihe n (EXP-8) given by him. charge shee‘i' was fiied in fhe'CourT of Manendragarh, who in ‘i‘urn committed Surguja, from where learned Addi‘rional on fransfer for trial. Kumari. He fook info possession t place of occurrence under EXP—3, Halka Pa‘rwari. The b‘ody of Su examina‘l’ion To Primary Heaifh C (9W8) conducfed posT-mor‘rem e (EXP-7} and opined Thm' cause c cuffing of corofid arfery and fh weapon of offence was recover-e accused based on The memorandur ‘ Affer complefion of invasTigm‘ion Judicia! Mogis-rmfe, Fir-sf Chss, fhé case To 'rhe Sessions Judge, i Sessions Judge received fhe case The prosecui'ion in order To esi'ablish charge againsi' The accused examined eign'r wifnesses. under Sec‘rion 313 of The Cr? appearing ogains? him and smfed fhe crime. Learned Addi‘l‘ionai 5e respective par‘ries, convici‘ed aforemen‘i'ioned. Sfa'remen‘r of The accused was recorded .C. in which he denied The maferiai Thai he has been falsely implica‘ied in ssions Judge affer hearing counsel for and sen'ienced The accused as WW,W,W WW, Eww 3' ,W We have heard Miss boTm Khar Mr. U.N.$. Dee, learned AddiTk Ismfe/ respondent. A‘r +he ou'rse‘r, Miss Sofia Khan 5urya Kumari; Moreover, from ' as aiso The medica’i evidence of report EXP-7, on ccco‘un‘r 01" The of carbfid artery, due f0 'Hne a axe, i1" is esfobiished fhaf The mfure. As far as invoivemen‘r of The concerned, Lakha'nsai accompanying 'I'he deceased a? 1'? sTaTed in. his evidence ThaT T . baTfie axe. In cross—examinai'i n of This wiTnes dinie To eiiciT any circumsmnc which discredi‘l’s The evidence of This wiTness. His presence aiong wi h his wife was buT naTumi. evidence of Lakhansai To cerTai exTenT is corroborated by The evidence of Ashabai @ Munnibai (PW-1) ho resides in The neighbourhood of The oc‘cused, who afTer hearing Th coi’nmoTion came ouT of her house and sow Surya Kumori in injured co diTion aT The piece of occurrence i.e. in accused in The crime in quesTion is husband of The deceased, 1e Time of incidenT. He has caTegorically e accused aTTacked Surya Kumari wiTh s defence has noT been (PW-4: , WG£ , iedmunselfwi‘ne‘up‘p‘e'ii‘m‘r and ' nal Public FrosecuTor on behah‘ of The has noT dispuTed'The homicidal. deaTh of 'he ocuiar evidence of Lakhansai (PW-4) Dr. RP. 5ingh (PW-8) and posT—morTem injury susTained by Surya Kumari i.e. cuT TTack niade by The accused wiTh baTTie deaTh of Surya KUmari was homicidal in Even The m m ‘ui 200 Wt?“ W (W) WWW ammmm frcm’ of the house of fhe accuse effence was recovered a? The i‘ found shined wi'rh biood. Th: evidence, i‘r is es‘l‘abiished ?ha‘f ‘H in quesfion. . Miss Sofia Khan argueé Tha‘f 1 commi‘r‘rad i.a. as per 1*he prosec be’fween The deceased and ‘rhe some verbal al‘rerca'rion Took piac‘ and The accused in which Si." infuria’red The accused and wH'hc on The spur of The momen? 'm a h ba‘Me axe and effacked ‘rhe dec accused does no‘l‘ Wave! 'beyor Learned counse! relied ueon The c of Thoian vs. smte of Tamil N< d. Moreover, fhe baffle axe weapon of qs’rance of ihe accused and same was :refore, in view of ‘i'he above ocuiar 1e accused was The auihor of The crime he marmer in which The offeme was uTion evidence, There was no animosiTy accused. AT The spur of The momenT a beTween The husband of The deceased 'ya Kumari Tried To inTervene which uT having any preplan or premediTaTion eaT of passion The accused Took ouT The eased Therefore, offence againsT The d SecTion 304 ParT~II of The IP‘C ecision of The Apex CourT in The maTTer' :du reporTed in (1984) 2 SCC 133. On The oTher hand, Mr. U.N.S. D‘eo supporTed The judgmenT of The Triai r is noT The deTer'mining facT in order To He reiied upon The decision of The Apex RaiasThan v. Dhooi Singh reporTed in CourT and argued ThaT singTe biov decide inTenTion of The accused. fourT in The maTTer of STGTe of 2004 AIR $CW 24. mac—78 WW,W,W m m '. r .a 200 mm (W) mam ammwm WWWif‘WW §iwm mmm The pari'xes, we have perused, fhe evidence avaiiabie an record. As p r- “fhe prosecu‘rion case, a1- The Time of incident 'rhe accused was “raking h s dinner in The courfyerd of his house, of The? 'fime The deceased aiong u ifh her husband were passing fhrough the sfree‘i' in from of The house f The accused, Lakhansai, husband of The deceased, asked The accused s To wheTher he is Taking dinner. IT appears ThaT on ThaT counT, accus d abused To husband of deceased, on which deceased Surya Kumari ask d The accused as To why he is abusing Lakhansai, whereupon The accus d became angry, he wenT inside The house, braughT The baTTie axe, a acked The deceased and singie biow was caused which proved faT , as a resuiT, Surya Kumari died insTanTaneously. In The evidence of Lakhansai iT has come ThaT There was no animosiTy beTween The pa Ties and everyThing happened on The spur of The momenT. IT appe rs ThaT whaTever has been Toid by Lakhansai could noT be ToieraTed The accused and he abused Lakhansai in which $urya Kumari inTervened, ThaT was also noT iiked by The accused, he fook 'rhe ba‘Hia axe inside ‘rhe ouse and a'H'acked Surya Kumari. In The similarly siTuaTed case in T e VmaTTer of Tholan (supra), when The accused/appellanT was asking Pal iammal To move away and abused heri §T ThaT sTage, SampaT appeared on The scene from his house siTuaTecl near The house of Palaniammal an asked The accused noT To use vulgar HqVingihear-fleameH counsel? , mac-48 * W 3W W, §?“HU§ , . @mq.g § WW “vi 20W WW (W) WWW am‘mm mwm mm %€tmn éwimm e pr’esenf and asked him “i'o move away‘ aS‘rioned The author-Hy of Sampa‘i f0 ask ‘a'i'ion ensued be'rween ihem. Appellan‘r would seitie a score with him and buf whaf is described as MO: 1 Soori ne blow 1'0 Sampa‘l' which landed on his r, Sampaf fell down and appelian‘l' ran ha‘r “if is equally no'l' in dispufe That h a knife. Appellani' had no quarrel or I? is no? shown Thai deceased sampa‘l' organized by K5. Rajah. No malice has 'ained by The accused Towards deceased on The spur of The momenT“. The Apex given siTuaTion, The accused would be inder SecTion 304 ParT-II of The Indian hnguage bacause the ladies war from fha‘l’ pbca. The accused qw him 1'0 move away and an ah’erc Threafened Sampa'r tha'r he immediafely Thereupon he fook kmfe from his wais? and gaye o right side of chest ThereafTe away. The Apzx Cour? heid t appeHam gave oniy one blow wi‘l‘ dispufe wH-h deceased Sampat had anyfhing To do wifh 'rhe chit been aileged to have been enfeM Sampct The incideh‘r occurred Ccur‘r fur‘rher held fha‘r in 'rhe guiHy of commiffing an offence t Pena! Code. Fac'rs of The presen'r case are sin +her'e was no earlier dispu‘re be‘t‘ moment when Surya Kumari Triez “rhe baT‘He axe and af’racked her, but in The presenT case, severiTy of The Crime WG$ much mOr‘e in C0111? ‘ hiiar To ThaT of The above ciTed case, as ween The parTies and on The spur of The i To infervene, The accused broughT ouT arison To Thoian's case because, The $ XIAHC—78 W 3W W, @aig’lg. , WW $¥i£§g via 200 3mm (W) WWW mm mafsam WWifaém %:aima11%¥t wifh baffie axe, whiciTis a deadly as a resui'r of which carofid urfery was y and nafure of fhe weapon of offence, aceused. Looking ’ro fhe fucfs am E of fhe I.P.C. is made ouf againsf fhe accused a'rmcked The deceased weapon, on her neck Le. vim[ pur'r cu‘r. Therefore, iooking 1*0 severi'f offence under- Secfion 304 Par-H i circumsfances of fhe case, we are of the considered opinion fha‘i’ if The accused is senfenced To undergo Rl. for fen year's, Then ‘i'he ends of J'u sfice would be mef. FacTs of Dhool singh‘s case (supra 14. fhe presen‘r case. succeeds. Convicfion and senfence In fhe resuif, The appeal par‘rly imposed upon the accused/appellanf under Secfion 302 of fhe I.P.C. are se‘r aside. He is acqui‘Hed of convic‘l'ed under Sec‘rion 304 Pc undergo RI. for fen years. The c fhe period spen'r by him in dei pendency of The appeal. Sdl- ms Dhirendra Mishra‘fi’ l s . Sdl- L.C. BHADOO Judge h“! i i i 1) are disfinguishabie wifh fhe focfs of fha‘i' charge, insfead fhereof, he is irf-I of The I.P.C. and senfenced fo :ccused shall be enfi'rled for sef off of 'en'i'ion during inves’i‘lgafion, Trial and \1 Judge 15 f