00 2 \\\\\uc\glg\o\g\\\\g7|\§\e\3\\u\\ ‘ $3119 en;?1 (Ci-inainaQ R ’ THEH CURT OF MADH PRADE$H WT JAEALPUR IN QHIG C YA 0 /? 1» O‘E 1994 Cra Ac NO a . Ba e 35 rs, Son of >Bh a‘ngi, eic‘iént of ’ MotilaLag ne BirdeColonyi Ré‘ sed (In J “at f St ate o f ay ade sh ‘ “ Re sponcient s Mdha Pr u { P TION »‘374>- (2 I 'RéCEDURE, 197 KIT " ,7; ‘- f J hukhn, agd yea okham Devai rs Nar; ar / j.pur. Versus Appellant: kccd ail) . x .Mww £ ’ CRIMINAL APEAL UNDER 5EC i OF THE CODE OF CRMINAL P 3 CGNVICTION: ‘ “ma HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker DiWaker) Criminal Appeal No. 313 of 1994 Bhukhan “APPELLANT VERSUS RESPONDENT State of Madhya Pradesh Shri Arun Kochar, counsel for the appellant. Shri Vaibhav Goverdhan .PL for respondent/State CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE O W‘ JUDGMENT (14.06.201 0) CRIMINAL PROCEDURE I . T;his Iappeal is‘ directed against the judgment and order dated 1303:1994 passed byIAdditionaI Sessions Judge, Raipur in’ Sessions Trial No. 311/1992 convicting the accused/appellant for the offence punishable under Section 304 Part ll IPC and sentencing him to undergo rigorous I *imprisonment for five years. 2. Case of the prosecution in brief is that on 12.04.1992 FIR Ex. P-1 was lodged by Phool Chand (PW-1) aged’about 32 years alleging that on that day at about 3 a.m. his brother Udairam was assaulted by the accused/appellant with a wooden plank as a result of which he sustained injuries On his head which led to his death on the same day. fix 3. So as to hold the accused/appellant guilty, (prosecution has examined 14 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure In which he denied the charge levelled against him and pleaded his innocence and false Implication in the case This apart one Shambai (DW-1) has also been examined by the defence in support of its caSQ. I i i i i 4. Since the deceased succumbed to the injuries sustained by him the offence was registered against the accused/appellant under Section 302 IPC However after trial the Court below acquitted him of the charge under a Section 302 IPC but conVIcted and sentenced him as mentioned above. V i I E 7_2, 5 . Heard counsel for the parties and perused the material available on record i;ncluding the judgment impugned. 9 ounsel for the acqused/appellant submits that presentis a case where Ithe deceased was trying to commit rape on the wife of the accused/appellant and to save her from his lust, he had caused certain injuries to him which unfortunateiy proved fatal and resulted in his death He submits that in View of Section 100 (thirdly) IPC the accused/appellant is entitled to be acqwtted as the deceased had sustained injuries at the 6. hands of the accused/appellantwhile he was exerCismg his right of private i ‘« defence. l 7. O‘n the other hand supporting the impugned judgment counsel for the respondent/State submits that the defence taken by the accused/appellant is an after-thought as it is not even the case of the prosecution that the deceased died as he was trying to rape the Wife of the “accused/appellant Moreover he submits that extra JudICIaI confes3ion has been made by the accused/appellant before Phul Chand (PW-1), Kaliram (PW—4) and Hirau (PW-5). 8. Phul Chand (PW-1) — lodger of the FIR has stated in 'his evidence that deceased Udairam was his brother and he was residing as tenant in the house of the accused/appellant. According to this witness, he was informed by his brother-in—law Ghanshyam and one Hirau (PW-5) that the accused/appellant had murdered the deceased who happened to be his brothern Thereafter, this witness went to the "house of the accused/appellant where Kaliram (PW-4) and the people of the vicinity were also present. On inquiry made by this witness, the accused/appellant informed him that he had caused injuries to the deceased with the help of ,i a wooden plank being used in rickshaw. Thereafter, as the deceased was l unconscious, this Witness and,9ther persons took him to the Amanaka' Police $tation where the report was lodged Statement of this witness has been duly supported by Kaliram (PW 4) Though at a later stage Kaliram r (PW 4) has been declared hostile he has stated that accused/appellant had made extra judICIal confeSSion to him that he had killed the deceased. Similar i is the statement of Hirau (PW-5) who has stated that g ’3“ a l accused/appellant had informed him and other persons that he had assaulted the deceased with the help of woodeh plank. Medical report of the deceased (Ex. P-10) also supports the case of the prosecution as Dr. S.V. Bhagwat (PW-6) who had medically examined the deceased has stated that he had found lacerated wound on his head. Dr. D.C. Jain (PW- 11) whd had conducted the post mortem examination on the body of the deceased has also supported the case of the prosecution Seizure Witness of wooden plank namely Pradip Kumar Singh (PW— ) has also supported the casle of the prosecution. Though, Shambai (DW—1) — wife of the accused/appellant has stated imher evidence that on the date of incident when shé‘ was sleeping in her courtyard, the deceased came there and t after pressing her neck made an attempt to outrage her modesty and in the meanwhile her husband (the accused/appellant herein) came and caused injuries ito him. Be that as it may, this type of defence taken by the accused/appellant appears to be an'afterthought and thus; cannot help the accused/appellant in any manner whatsoever. .a 9. Thus in View of the extra judicial confession made by the accused/appellant, seizure of wooden plank vide Ex. P—4, medical and post mortem ireport of thesdeceased,lthe-conviction of the accused/appellant under Section 304 part ii and the resultant sentence appear to be just and J- v reasonable. This being the position, the findings recorded by the Court below do not call for any interference in this appeal. i Consequently, the appeal being dev0id of any merit is liable to be dismissed lt is accordingly dismissed Appellant is reportéd to be on bail His bail bonds stand cancelled. He be sent to prison to serve out his remaining sentence. 10. .,.. Sd/- g . ; Ptitinker Diwake Judge i l r