IN THE HISGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH Cr. A. N0. Zé& /2003 CRIMINAL APPEAL U/S. 374 2) OF Cr.P.C. APPELLANT 1N JAIL) Ramkunwar Alias Pakali bai Aged 32 years,W/o. Ved Prasad, R/o. Shiv Talab, Serf1ariya, P.S. Kota Tahsil and Distt. Bilaspur (C.G.) VERSUS The State of Chhattisgarh Through P.S. Kota, Tahsil and District Bilaspur (C.G.) AGAINST THE JUDGEMENT DATED 03.03.20 0 PASSED IN SPECIAL CASE NO. 354 99 BY THE SIXTH ADDITIONAL SESSIONS JUDGE BILASPUR, DISTT. BILASPUR (C.G.) ( XI—HC—78 EW,W;W WW ' .(?:‘9:N9:.3£‘z/.Q$. In 200 WW (W) WWW WWW mmawm I é?a%n3né31 1 CH: HON’BLE MR. L.C‘ BHADOO 8- HON’BLE MR.DHIRENDRA MISHRA, JJ \k 30.1 1 .2006 Miss Sofia Khan, Advocate for the appenant. d Mr. D.K. Gwalre, Dy. Govt. vocate for‘the State. u f Heard. Oral judgment dictated on Per Lfc. Bhadoo- J. Q This appea! is directed agai st the judgment of conviction and order of sentence dated 3.3.2000 pas by the 6‘" Additional-Sessions Judge, Bitaspur in S.T.No.354/99, whereb Additional Sessions Judge after hoiding ‘- the accused/appellant guiity for ission of offence under Sections 302‘ of the IPC sentenced het to under o rigorous imprisonment for life. The case of the prosecuti , in brief, is that on 9.7.1999 Sukhiram lodged a report (Ex.P-9).in the Poi ce Station Kota to the effect that Vedram & Ramkunwar, who is his sister were residing in the adjoining houSe. RamkunWar was brought by Ved am and they were living as husband & wife since last 20 years, As they ere issueless, therefore, his daughters namely Shivkumari, aged 16 y rs & Saraswati, aged 7 years, were residing with Vedram & Ramkun ar. Today, at about 7.00 a.m. Kalabai came to him and informed that Ve ram has been murdered and his body is lying in the house, on which he w nt to the house of Vedram and saw that he was lying in a pool of blood in n injured & unconscious condition. There was injury on his forehead. He inf rmed the Village Kotwar. When he was making arrangements to take Ve ram to Kota for treatment, by 8.00 a,m. . l l l l . t RIO. j s m c o WW,W,W q oco.oo.‘..o.o.o....o. mm (13W) WWW WWW WW§WW WWW éqmm Vegram died. Receiving this re t, the Station House Officer, Police Station Kata registered ’the offence under Section 302 of IPC, ieft for scene of occurrence/& after giving notic (EXP-1 4) to the Panchas prepared the inquest (EXP-15) on the body of edram. He aiso prepared the site plan (EXP-8) of the place of occurre ce. While in police custody, accused Ramkunwar gave memorandum -5) and in pursuancepf-that she got recovered the axe, weapon of offe ce under EXP-6. Body of Vedram was sent‘fofr postmortem examination o the Community Health Centre, Kota where Dr N K Samdaria (PW-1)c ducted the postmortem examination on the body of Vedram prepared the postmortem report (Ex P-1) and opined that death of Vedram was due to shock and Wei haemorrhage as a result of grievous head injury. The doctor also examined accused Ramkunwar and prepared inj report EXP-3. “Clothes of accused Ramkunwar were seized under Ex 4. After completion of usual investigation, charge sheet was filed against the accused/appellant her in and co-accused Ashok Kumar in the Court of Chief Judicial Magistrate, laspur, who in turn committed the case to learned Sessions Judge, Bilas ur from where 6'" Additionai' Sessions Judge, Bilaspur received the case on transfer for trial. The prosecution in order to establish the charge aga nst the accused persons examined 12 witnesses. Statements of accused persons were recorded under Section 313 of the Cr.P.C. in which they de ied the material appearing against them in the prosecution evidence. Learned Additional Session Judge after hearing learned counsel for the respective parties, convicted and sentenced the accused/appellant herein in the manner afore-mentio ed, however, acquitted the co-accused Ashok Kumar of the above charge. P.T.O. p r ( .P u . - i XI-HC-78 HW,W1§,%W o t...‘...‘o‘.o~ooo..o. WW (13W) Tmaarw mmm mmwefwm mmwm %31%11311%3T j We have heard Mi’ss Sofia Khan, Advocate for accused/appellant 'and Mr D..K. Gwalre, Dy. Government Advocate for the State. 1 Learned counsel for the accuvsed/appeltant herein did not dispute the homioidal death of Vedram. Apart From that, from the evidence of PW-5 Shivkumari and the medical evidence of Dr. N.K. Samdaria,.(P-W-1), it is established that the death of Vedrarr was homicidal in nature. ‘ As: far as involvement of the ccused/appeilant in crime in question is concerned, Iearned counsel for t e accused/appeliant argued that the ‘ appellanthas been convicted only o the evidence of PW-5 Shivkumari, but her testimony is not reliable and trustworthy for the reason that her evidence is contradictory to her s tementgiven under Section 161 of Cr.P.C. ln the said statement, s e has stated that» initially deceased Vedprasad (Vedram) & accused R mkunwar quarreied, some altercation took place between the two, therea er, Vedprasad (Vedram) picked up the axe lying nearby and assaulted Ra kunwar. As Vedprasad (Vedram) was in a drunken condition, therefore Ramkunwar snatched the axe and assaulted Vedprasad (Vedram). ln the meantime, co-accused Ashok ‘ Kumar took that axe from Ramkunwar and assaulted on the right side ofthe head of Vedprasad (Vedram). ln the Court statement, this witness has totally absolved Ashok Kumar and shifted the whole blame on the head of r accused/appellant herein and therefl caused the fatal injury to the decea examination-in-chief has stated that the axe and first assaulted the pre the axe and assaulted Vedprasad assaults were made by Ashok Kumar. Therefore, the above evidence '\r‘\ P.T.O. 1 \ are, the co-accused Ashok Kumar, who sed, has been acquitted. PW-5 in her in fact, Vedprasad (Vedram) picked up sent accused/appellant, who snatched (Vedram) only once and remaining H‘\ XI—HC—78 HW,W,W Wm o.oooo.o.a?\ 200 WW (W) WWW ' mmafwmg WWW WWIWW égwm probabilised the fac‘rti that the used/appellant herein assaulted the deceased only once in her right of private defence. On the other hand, learne Deputy Government Advocate for the State supported the judgment of trial court ‘ ln order to apprecrate the rguments advanced by learned counsel .for the parties we have perused t e eVIdence of PW-5 Shlvkuman because she Ls onty Witness on whose te tlmony the accused/appenant has been convicted~and ‘she is only witness who said to have witnessed the crime, and there is no other witness. *PW-5 5hivkumari has state in Para 3 of her evidence that at about 8 p m in the nig‘ht on asking by Vedprasad (Vedram) she was cooking meals in the meantime Vedpr sad (Vedram) & Ramkunwar started quarreillng Vedprasad (Vedram) as abusrng Ramkunwar in the name of ‘ mother & srster and In that process Vedprasad (Vedram) picked up the axe and attacked Ramkunwar. Ramku war snatched that axe from Vedprasad (Vedram) and assaulted him. From the evidence of Dr. N.K. Samdaria (PW- 1), it has come on record that on 10.7.1999 he examined accused Ramkunwar and one injury was fo d on the Left side of her face in the size of 1V2 x 5/4 inch. Therefore, this me ical report corroborates the evidence of PW-5 Shivkumari. who has state that in the first instance Vedprasad I (Vedram) attacked Ramkunwar wit the axe. Therefore. from her evidence it is clearly established that Ram unwar in her right of private defence snatched the axe from the dece sed when he was attacking her and attacked him and thereafter, as p r prosecution case, co-accused Ashok Kumar snatched that axe from Ra kunwar and attacked the deceased, as a result of which he fell down and di d. P.T.O. m t M ”a? XI—HC—78 EW,3‘€1W, Wag? o oo..oo.oo..o...o.ooo. WW (W) WNW WWW mwm WW WW égmm ‘/' In View of the above facts, in major injury, accused Ramkunwar s her right of private defencgf an’E in onjly once. Moreover, d/eceased condition he started abusing Ram with the axe. PW-S has partiaily s has resiled from her statement ma i u fact, AEhok Kumar assaulted the d of lthe considered opinion that the i charge£against aecused Ramkunw Ramkunwar acted “in her right of p against whom charge was that he already been acquitted. in the result. the hndin accused/appellant herein for com IPC cannot be sustained. Assu allowed. Conviction and sentence 302 of IPC are hereby set aside ar the said charge. Appellant Ramkr therefore, she be set at liberty forthv Roshan/i Certmed copy as per Sdl- L.c.BHADoo Judge rules. N. /- the first instance, Ashok Kumar caused .natched the axe from the deceased in er to protect herself she attacked him s in a drunken condition, in that unwar and even attacked Ramkunwar pported the prosecution case, as she e before the police i.e. Ex.P-1O that in eased with the axe. Therefore, we are rosecution has failed to establish the r for the two reasons i.e. (1) accused ivate defence; and (2) that co-accused cked the deceased with the axe, has . of the trial court convicting the 'ssion of offence under Section 302 of , the appeal succeeds and same is osed on the appellant under Section id appellant Ramkunwar is acquitted of mwar is in detention since 9.7.1999, rith, if not required in any other case. r l Ma r%?%—’:t§a P.T.O. gr? obwwb ' Q/Mo q\ c p i d a a