L. XEI-189(Jail)ej.P.R-/9.94 CF0000059933 ( G. ft k^Jl,,. ^ /" No.' APPfiAL OF PRISONER -^ . Oivision Bench ( ^riiiilnsi) "J/^a.^^ -28/ ?4- Name TT^T Father's name ^®^/ Residence ^^miZr^AoLlKTXrR^i-^Age ^Z ^" ^-y-^—.-^d^l^-:...^ Sentenced to /j (7 '^w^^^/^reiw^ ^fffA ^c Under Section ^^ -^,-f<? ^-» f^£_ ^w:^te^£^ 1^-<5- Q^ _by^T- '^- €>--^ Rry It is explained to the prisoner that if he States he wishes t6 be represented by a legal practitioner the appellate Court will not proceed with the case for sevendays unless the legal practifioner appears earlier, Ifthelegal practitioDer does not appear within seven days he may not heard at all if the Prisoner states that he does not wish to be repre- sented by legal practitioner the court may proceed atonce with the case and will not be pbliged to give a heariDg to my legal practitioner who should appear. 1 Date of Application for copy of Judgement _ 2 3 4 n -T© 'Wir^^cr ^9^ Date on which copy received Date on which Appeal sent ^6 -2.9^ ^A-ah^ ,2Yt^- Z^ ~9 ~3^ Whether the prisoner wishes to be represented or not. ____, No ^r^'^r^^- fr?-42 /6-4_Name -7737?^- zt%//- s/ft?^m~. Confinedin ^W ^hfr r^^T Jail "rS^n^TJ?" r-ffogoj 219._ Dated " '-.'••2-^-9 No. 199^ Forwardedto the __^ _• : : -^' .- : :'. . ; J •. '6<!>^(^ ~^^( ^-n]^W^" HfcM"^ <^^t3^^(| <'; to gether with a copy ofjudgement or brder passed in the case for favour of transmi- ssion to the proper Appellate court. ,^> ^^^> Superintendent Office Date of receipt in Date of receipt of record to accompaiiy the Memoof Appeal to the Appellate court No Dated Forwardedto the Date of receipt m Appellate court 199 (P.T.O.) --\ ./"^- -^. XI-HC-22 ^n^T^i f^fw^n^T ^"Rt^^rtn ^ •^qpn^R, ^itW^, l^iTCTy ^S^I^II^NI^'c^^^M.l.^ '^^r '311^1 ^^T^T ^rftH DIVISION BENCH: HON'BL^ &HON'BL^ '^FifeF^T "RT^I^f ^ ft^ ^N^R ^^P^?W^T SHRt LC.BHADOO SHRI DHiREftjDRA MISHRA, JJ CRIMINALAPPE^L N0.1 Sstof 1996 /^ ^^ ^ Appellant Respondent Vs. Bihanu State of Madhya Pradesh Appellant Respondent CRIMINAL APPE^L N0.168Jof 1996 Mehattar ^1% Vs. Shri Akhit Mishra learned Shri U.N. S. Deo GA with the respondent/State. State of Madhya Pradesh ^ounselfor the appellants. . ^hri M.P.S. Bhatia learned P.L. for ^JPer L.C, Bhadoo. J Criminal Appeais No. 1685/19961 Bihanu and Mehattar are, arisins same incident; they are bein^ judgment. ORAL JlilDGMENT (06.0^.2006) and 1686/1996 filed by appellants out of the same judgment and disposed of by this common [7ft^ ^fe^ XI-HC-22 31liST^T f^N'^iiS'^y ^TRt^'HS^n • 3. -s^ -^P^R. ^^FI%, 1^ray L<^S^5& TiTO^iT^ira'"" ". . - ' '^R^ :200. — 2. ^ . '3Ti^T ^^TT^R 'Hfi?T By these appeals accused/^p legality, proprietyand correctn| and order of sentence dat^ Additional Session Judge, Bilai whereby learned Additional accused/appellants guilty for! section 302/34 of the 1PC imprisoriment for life and payf|n payment of fine to further unde| /^ppellants have challenged the ^ss of the judgmentof conviction id 17.9.1996 passed by First ipur in Session Trial No. 28/1995 ^ession Judge after holding the commission of offence under sen|:enced each of them to undergo ay f|ne of Rs, 200/- each, in default of ^goRI for one month. MeHattar w Case ofthe prosecution jn bri^ a report in police stationKorbla thereto at about 6 p.m. when of Ganesh namely Sukwaraba| inquiry she informed that her husband by attacking Mayaram Kanwar, Dadu Singhj of occurrence and saw that bo<| the door of the house of both legs of Ganesh and inju^ aiso there. Blood was oozin^ knees and legs and btood wa^ dispute between the regarding partition of land. admitted that he assaulted that as the deceased used to deceasfed oh '^(^t<r!<i1i ^TH^f "^ fe^ <H-n^s< ^3?{^H3?T^l is that Ram Singh R/V-3 lodged to the effect that a day before |ie was at his residence. the wife came weeping to his house. On and Bihanu had murdered axe, on which he along with jand Anandram went to the place |y of Ganesh was lying in front of r. There were cut injuries on ies on his head and body were out of the injuries in both the lying on the ground. There was and the accused/appeliants inquiry by Panchas Mehattar ». On further inquiry he said ^>use him after consuming liquor, Meh^ttar G^iesh. 4. [Tft^'^fe^ XI-HC-22 •^^ ^prn^, w^w^. 1^rc?y ^) — -^_ 'W-Wil9^Hi% -j? 3TT^[^? 'f^Tf^W^^T stx-ii^ ^rit?[ 3??^T i^fTW ^?f^ ^Prf^R^ 'WT^Tf ^ fe^t iN^R ^a?rf^F?w^i 4. he along with his son Bihaij u committed murder of Ganesh. On receiving tbis report the Sts|tion House Officer registered FIR P- 6, left for the scene of OCCL] Panchas prepared Panchnj cystody accused Mehattarj rrence and after giving notice to the ama P-1 of the body. During police gave memorandum P-2 regarding the place where he had ke^tthe weapon of offertce i.e. axe and in pursuance of that memot|andum axe was recovered under P- 3 at the instance of the a4cused/appellant. 6lood stained and plain soil was taken into p<|>ssession under P-4. Ctothes of the accused were taken into p<| for^ost mortem examinatij under P-10 where Dr. B.PI mortem examinatjon on issession under P-5. Bodywas'sent &n to Primary Health Centre Korba Kanwar PW-4 conducted the post ithe body of the deceased and submitted the report P-7. Weapon of the offence i.e. axe was sent for chemical examinatjon and after examjnation report P-8 was received. After comple^ion ofthe investigation charge sheet was filed against the accu^ed persons in the Court of Judicial Magjstrate First Class.Korya who in turn committed the case to the Gourt of Session Ju<|lge, Bilaspur from where learned Additional Session Judgej, Bilaspur received the case on transferfortrial. Prosecution has in order accused/appellants examirjed accused persons were als4 Code of Criminal Procedurfe establish the charge against the fjve witnesses. Statements of the ^ recorded under section 313 ofthe in which they denied the material [^f^^fe^ r/"' XI-HC-22 'sn^i'^T fc^i^h 3TI^T ^^ra'TTIi'^l T ^^ ^Tpn^pr, '^ITOT?, f^TRTy -L<~ WH^IT^W^ l.fc&^S^ 3^T ^^H^: ^N 7. 8. iiti appearing against them pieaded innocence and fals^ produced one Setram as a d^fence Learned Additional Session of . both the parties accused/appellants as merltioned judgment. We have heard ^Shri <=hs^Id-41'f 'STO^ ^ fe^ T^T^R iT^r^R3?nt?? the prosecution evjdence and implication in the case. They also witness. jJudge after hearing the arguments ^onvicted and sentenced the in paragraph one of this^ Akhil Mishra counsel for accused/appeilants and Shfi U.N.S. Deo GA and Mr. M.P.S. Bhatia panel lawyer for the r^spondent/State. Homicidal death of Ganesh i^ not in dispute. As far as the involvement ofjaccused /appellants in the crime in question is concemed PW-1 fateful day she and her hu! Sukwara Bai, wife ofthe deceased is the eyewitness to the in^ident who has stated that on the band were at their residence. Her husband had gone to the tjouse of Mehattar as the house of Mehattar is adjacent to thei|' house. Her husband first went to the lane from where he wenl to the house of Mehattar and there they started quarreling onjsome issue. Thereafter, accused persons felled down her hjusband, accused Mehattar caught hold of him and Bihanu att|acked him with axe as a result of which one leg of her husbanjd was cut in the calf region. He also received injuries on the hea^l on which she raised screams and [Tft^ SP^^ XI-HC-22 3TF^T^I 'fe^BT^T ^tt^Titrc? -L -4-... 6s;^ ^T^ ^FTM^. ^ft?FT?. fN^Wy ant^i.'ER^ _<^ra...i4.^.^/Ak W^^TWW^-/ - ^ ^ ' '" " ^ ! .^^ 2 - n' 37I^T'^RTIW^r^ went to her brother-in-law Fjlam Singh and informed him about the incident. Thereafter, R^ incident and saw the body o< Thereafter, Sarpanch was a| theri Ram Singh lodged th4 |n Singh came to the place of the the scene of occurrence. Inl has admitted that she is tM wife is Shanti Bai who is re^ husband was residing with the tim^ of incident there ^j^I<yi4ltl '^R^Tf ^ ft^ T^R:$TT ^^ff^T^r^i Ganesh who had died by that time. so informed about the incident and report. Thereafter police came to the cross examination this witness ^ second wife of Ganesh and first ^iding in a hut in the forest and her jher. She has further stated that at j^as dark. Her husband was in a drunken condjtion. She ha|d already cooked the meal. It is correct to say that in cori quarreled and abused the a^cused persons, however, she does not know that what Ganeshi witnessed that the accusedi She was standing at the g^ where house of Mehattar is was locked and Mehattarj nection with partition of land he did in the house of Mehattar. She persons felled down her husband. ite of her house. PW-2 Bhunendar has stated that he was infor^ned by Mayaram aboyt the quarrel betweeh Ganesh and Mehefttar, on which he went on the lane situated and saw that Ganesh was lying dead and there was ir^jury on his leg. House of Mehattar and Bihanu were not in their re^idence. In the cross exanjiination thiswitne&s has stated that he along with Ram Singh wjent to the police station for lodging the report and at that time police stetion, on inquiry Mehattar was also present in the he stated that Ganesh came in ["lTl^^fe^ XI-HC-22 -^^ ^W^W, ^^tW^, t^RTy (S) -^- 'H[¥8^T^-HI^€rr^,U.S.^ c 209 ^TI^T^T 'f^?t?F <3T5i¥? '^RN'^lft^ 'STi^T i^fl^ ^?f^T ^{qf^T^ Tfpq^jf -^ fe^ •^^R ^^Pm31T^l drunKen condition to murder ] Ganesh or else Ganesh woul| Singh is the person who lod^ on receiving the information hj and saw the body of Ganesh ^iim and that is why he murdered j have murdered him. PW-3 Ram ed the report. He has stated that 3 reached the place of occurrence lying on the gate of Mehattar and there was injury on his knjse and leg and there accused Mehattar admitted that he ha; murdered Ganesh and he lodged the report P-6. PW-4 Dr. ^.P. Kanwar has stated that he TO conducted the post mortem 4n the body ofthe deceased and found that (i) there was incise|l wound in the size of2 1/2x 2 x2 y2 inch in the upper portion c^f left leg (ii) jncised wound in the !ow left knee (iii) incised wound in size of 5x 1 Yz x2 Y2 inch be|< the size of 3 x 2 1/2 x 2 y2 inch |an the knee of left leg. Thigti bone of left leg was fractured. H^ has stated that on account of excessive bleeding andshoch is P-7. the deceased died and hjs report Therefore, in view of the abofe evidence of PW-1 Sukwarabai, the wife of the deceased an^l PW-3 Ram Singh before whom the accused Mehatter m^ide. extra jydicial confession, invofvement ofthe accused IVfehattar and Bihanu is estabtished. The jnvolvement of the L____. accused/appellants is further established by the fact t^at evidence of Sukwarabai is corroborated by the medic^l evidence. Both the accused persons hav^ common intentjon to attack the deceased and in furtherance of common intentij3n they attacked the deceased. ['!^^f^? XI-HC-22 3Ti^T^T 'f^Tt^3:nt?T ^^IW^ft^ ^•^ ^TPTRW. ^t?PTS»t^rTHy w ^m^ii ^^rr^^<yA...l.fc8.ST^.i 3^T^T^R^Tf^T 10. Leamed counsel for .the 11. 12. 13. •t "^FffeFft^ 'RTR^f ^ 'feT^ <P»l^l< ^T 3TS^PR' OT^T accused/appellants argued that deceased himself went to tljie house of accused persons in a drunken condition and start^d quarreling with them and in the right of private defence they it is a case of exceeding th^ was no intention to cause! against the appellants does | the IPC. On the other hand leamed supported the case impugne' assaulted the deceased; Therefore, right of private defence and there death and as such the otfence Inottravel beyond section 304-11 of counsel for the respondent/State j judgment of the trial Court. tn order to appreciate thel counsel for the appellants trial Court. It is established ftl brothers regarding partition <] the deceased went to the condition and started abu^ between the accused persd process accused Mehattar Bihanu picked up an axe legs of the deceased. !n the ordinary course leg 14 therefore, accused persons quarrel in the heat of passiorji arguments advanced by learned v^e have perused the record of the fat there was a dispute between the ^f the land and on account of which l^ouse of Mehattar in a dmnken iing them and there was scufRe jns and the deceased and in that jsaught holds'of the deceased and the house and assaulted on the frdm not the vitat part of the body and littacked the deceased in a sudden when deceased cameand started [TTt^^fe^ .^.-^^..^-.^.^ ^^_,^-^K XI-HC-22 3?i^[ ^T fc-ii.4) ^^ "^'RW^Tii^T -J, j -s^i ^FTI^?, ^t^rs, 'fe^rcry -%- -qra^ii^Hr^ .LfeS..^ ^ : f^8?' '^IT^T ^aTStR 1qT^rT ^FlfeF^ T?TH^¥i? ftTst <i^^jT ^^ti^TH^TF^l abusing the accused pet^ons, therefore, in view of above intention to cause death ofiGanesh is notestablished. However, manner in which the accu^ed Bihanu assaulted the deceased on his tegs with axe, kn^wiedge that the injuries inflicted to Ganesh can cause his de^th can be attributed to the accused persons. We are fortified ?n our view by the judgment of the Apex Court in the matter df Shivappa Buddappa Kolkar alias Buddappagol Vs. State of Karnataka and others reported in 2004 AIR SCW 5736. Thjs facts of the said case are that the deceased Hanamant Ba^appa Byali was doing agricuitural operations in hjs filed dos^ to the village along with PW-1 and PW-2, PW-1 being the br^ther of the deceased. The trouble started when the appellan1| the bullock cart through t(ie fields of the deceased so as to reach the fields of first accijised. The deceased objected for the cart being taken through h|s fields especially for the reason that there was crop on the tand quarrel went on for some tl the bones of teft forearm and the other accused tried to take On thisan altercation ensued. The me with abuses hurled against each other. Suddenly the appel|ant took the axe kept on the cart and hit the deceased Hanarrjant on the occipital region which resulted in depressed fra|;ture of the skull bone. The other accused also inflicted injurpes with clubs resulting in fracture of ^nd a lacerated wound on the outer aspect of the thigh and o|i the facts of the case th?e Hon'ble Apex Court hetd that the ^ccused during quarrel suddenly took [^it^^fe^ ^ XI-HC-22 ^iT^r^T 'f^FF^n^T ^Rt^'?7Jt<T Y -t- -g^ ^FTI^ZI, ^wre, f^my ® -^— WH^Il9b'Hr^~ ^^^ '^FF<8?' ^TT^T'^TT^R'Hf^T 14. 15. axe and gave sotitary blow| resulting into his death and arranged plan to attack imputed withknowledge that| to cause death. ^Flfef^f'RTR^f ^ fe%1'Tf^$R ^^T^RW^I ipn back of head of the deceased Ihere was no premeditation or pre- tfie deceased, accused could be jthe injury inflicted by him was likely Thus in view of the foregoih^ reasons, we are of the considered opinion that the judgmentjof the trial Court convicting the tion 302/34 of the IPC and sentencing them to undergoj imprisonment for Ijfe and pay fine of Rs. 200/- each, cannot bejsustained. In'the result, the appeals section 302/34 of the IPC| under that section are setsj are convicted under sectionl undergo Rl for 10 years. It isj since 11.12.1994 which is \State; therefore, they hav^ imposed on them. They be in anyothercase. Sd/.- L.C, Bhadoo Judge Ipartly succeed. Conviction under and resuttant sentence imposed sjside instead thereof the appellants 1304-11 ofthe IPC and sentenced to steted thatthe appellants are in jail ijiotdisputed by the counsel for the already undergone the sentence ^et at liberty forthwith if not required Sd/- Dhirendra Mishra Judge [^^^^ J, XI-HC-78 *11*l€^l^*fT^ ^^r^irai^T, yTS1^f^l<i, RdH^ .C.^:JM£/.^.L '9-\ 3TI^$T11??P(^f36R[) ^200 OT^^T^T^RPP ^iT^n^^TaRte / ^^aisa^ w DIVISION BENCH: HON'BLE SHRI L.C.BHADOO & HON'BLE SHRI DHIRENDRA h 22.03.2006 Shri Akhjl Mishra, leamed Shri U.N.S. Deo leamed G. State. The perusal of the jud( inadvertently the appeal number out as 1685/96 whereas it shoi<l number of appeal filed t>y Mehattsjr instead of 1685/96. Accordingly itself in the main judgment. Sd/.. L.C, Bhadoo Judge ct>ynsel for the appellants. .A. with Shri M.P.S.Bhatia P.L. for the ment dated 06.03.2006 shows that appeal fited by Bihanu has been typed Id have been1686/96 and the appeal has been incorreetly typed as 1686/96 le correction is carried out in the Court VKflIwJlrl <11*1oll'^'fe^yt ^Rl^N >^jl ISMRA. JJ Sd/- Dhirendra Mishra Judge