/' ^- .-'• CF0000064282 [HE HIGH COURT OF JUDICATURE AT JABAL?0°:i";.P Criminal Appeal No.2-2-\S of 200,0..... APPSAL UNffiR SECTICH 374(2) OF THE CRTMNAL PROC3DtRE COB ilppi?'Li,.Arar: ^—^- •V n- RESPCNffiNTS; Vs. Bandban, S/o Biphaiya Nagetia aged about 30 years, R/o Cbampa Nagar P.S. Kusmi, QLstt. Sargujs, (K.?.) . rlhe State of M.P. fhrough: P»S. Ibana prabhari, Ti-iar.a-Balrampiirs Eistt. Sareujas (I'.'ip) The appellan-t named above begs to subroit as under ; z^. XI-.HC-78 3n^T!i:iT)^lf^ gsiTaiTOTsbii* '•1 . ~3w< •^ww'v, w^vw, ^viwy. iTTlTPTr^TN? •••s-'''<:''^"£!''{Al'^y^FT 200Q Sii^i 4a<*i ('i,cit3s"<'3') ?RiTW:Hf?ci'3:n^r DB:-Hon'Me Shn L.C. Bhadod Hon'ble Shri Sunil KumarlSinha.J. 7-2-2007:- Miss Sofia Khan, counsel|for the Mr. D.K. Gwalre, Dq>uty| Oraljudgment dictated cm| L.C. Bhadoo. Ae. C.J. The accused/qipellant is i^ot able to fumish bail bonds, therefore, appeal is heard finally. This appeal is diiected sentence dated 30 June 2000 No.390/98 whereby leamed Ses! guilty for conunission of offence undergo imprisonment for life & offineto against further undergo impriso|nment for 6 months. tMat Case of the ptosecution i^ tfae residence ofhis matemal unc| she was called by the wtfe of Dh^ tolking, accused asked Somari deceased. However, the accuse^ the deceased was repeatedly obj picked up a stick, attacked Somaifi he picked up a Geda (wooden cl Bifai and her dau^iter Pumi accused did not stop, on which »bi'iifci'ifl-i><i*i<iTfftei^)'<R]^i< ^siRffl'ai^T Aa. C.J. & appellant. Ctovt. Advocate for the State/respondent. Dais. the judgment of conviction and order of jiassed by Ae Sessions Judge, Siirguja in S.T. ^ions Judge after holding the accused/appellant [under Section 302 ofthe IPC, sentenced him to |to pay a fine ofRs.500/-, in default ofpayment that on Ae fatefiil day accused Bandhan was at |e Dhemna. Deceased Somari was also fhere, as fcmna. When fte accused and the deceased were she is hag (Dian) which was objected by the was repeatedly saying that she is hag, whereas jecting the same, ]h that process, the accused ifi Bai with the stick, when that stick was broken, (ub) and attacked Somari with Ifaat on her head. flie accused not to assault Somari, but the tried to intervene, the accused threatened them asked sUe \ XI-HC-78 an^TwR-ii'ib gqTsn^rshtfiti *II+<MI awrai SFSST "l<|i|lc)'M, a'Tdy'is, (sK'ii'My QV.A-. 1,2-15 ^[ 2000 3< 1^1 4^cb (yiI^G|<,er) B^ciTW gf?(T 3n^?r also, as a result of the assaultl succumbed to tfae injuries. Son on his retum from Ihe market.1 occurrence and saw Ihe body the matter was reported by Ma^dh Station House Qfficer P.S. crime, left for scene of occurrei^ce inquest (Ex.-P/4) on the sent under Ex.-P/lO for where Dr. B.R. P/2) and opined that cause of de^ Injiuy No.2 over skull and death made by Ihe accused Somari fell down and 'the deceased Magdha was infonned by his wife Receiving mfonnation, he reached place of l^is mother in )fae house ofDhemna. On 9-10-98, jdha to Police Station Balrampur under Ex.-P/l. Mr. A.K. Tiwari (PW-6) registered the (ce, after giving notice to the Panchas, prepared Somari. The dead body of Somari was to the Primary Health Centre, Ramanujganj ^ postmortem, prq)ared postmortem report (Ex.- |dh was shock due to massive haemorrhage fccsn Was homicidal. ctt ofUs BaLtampur body ofpeceased postmor|:em Sharma conductejl postmortem, prq)ared postmortem report (E; tlte After completion of the accused in the Court of Judicial committed Ihe case to the Sessiodis to establish Ifae charge against the accused was recorded under material appearing against him Judge after hearing counsel for accused as aforementioned. We have heard leamed co|unsel for the parties. Leamed counsel for ffie death of Somari. Moreover, Punri Bai have stated diat the as a result of which Somari °hl'l|Fl-l41-l t||t<ltTtff3CA<l'al«l< ^srf^fTsn^r i]nvestigation, charge Aeet was ffled against the Ivlagistrate, 1 Class, Ramanujganj, who in tum Judge, Surguja where the prosecution in order accused examined 6 witnesses. Statement of lection 313 ofthe Cr.P.C. in which he denied tfae jn tfie prosecution evidence. Leamed Sessions respective parties convicted and sentenced the ttle accused/appellant has not disputed homicidal ey|ewitnesses namely, PW-2 Bifiii Bai and PW-4 accjused attacked Soniari with wooden club (Geda), su^tained uyuries on the head. PW-3 Dr. B.R. \\, ^H A-HC-78 siT^rqir^jcb cTSTT ^TI^T ^TTT^ *TTHrlT a»*Tra> 3%T ^ww^, w-^wie, (cfdlti^ * * *"* ***********^ <"* • * * ^ 2000 Sii^i i4a<*> (lyi^stii'iT) ^RiTWHfersn^T Sharma has stated that on 10/10/p8 Somari. He noticed fliat followingl (1) Lacerated wound sizeof3cmxl cm crtsi (2) Lacerated wound in| above pinna (ear) d^ on account of temporal and mortem in nature. fhe size of5 cm x6 cm over left side of skull up to brain matter. The bone was fractured, of bone brain matter was visible. Ri^it parie^al bones were fi'actured. Injuries were ante- tleath was homicidal in nature. r)d4ep fractare In view of the above, it homicidal in nature. wtifll As far as involvement of| concemed, PW-2 Bifiii Bai has s( accused attacked the deceased When she tried to intervene, examination, she has categoricall^ deceased fliat is why she tried h|) corroborated by Ifae evidence of stated Ifaat tfae accused attacked A^ examination of these witnessesj circumstance to discredit the (wooden club) was taken into pog!| invoh?ement ofthe accused/appelli^nt has Leamed counsel for flie act the accused attacked Ifae deceased ctiH^<fl'i w-KnT ^ff^t <^i •<?(;:[< ^;3rt^R'ant?T he conducted postaortem on the body of injuries were found on Ae body of Somari:- right side offorehead above eyebrow in the x % cm. There was swelling around the mjury. is established Aat flie death of Somari was |1he acctised/appellant in crime in question is tated that on flie fateful day she saw that the wooden club (Geda) thrice on her head. the accused ftreatened her also. Ih cross- stated fliat she saw the accused assaultmg the ib intervene. The evidence of this witness is pW-4 Puai Bai, daughter of Bifiu. She has deceased with wooden club (Geda). In cross- defence has not been able to elicit any of these witoesses. Moreover, Geda liession fi'om the place ofoccunence, Iherefore, been established by the ocular evidence. evtdenee ;used/q>pellant argued ttiat in a sudden quarrel with wooden club on her head, tfaerefore, he i*M !11S \ '^7 .Xt-HC-78 311^1 qirR^jeb (raTan^TsbHi* *<1«^WI sh*<l<h 3'ST "^l'illt-ll, »Tfl«'IS,fsK'll'Hy .cy;.A..?-.'L.i:?. 4 ^T 2000 311^1 4a<»)(yit^51<<eT) STciTWfffiffsn^r had no intention to cause deatfi accused does not travel beyond On the other hand, leam^d counsel for the State/respondent siqiported the judgment ofthe trial Courf. flr ]h order to appreciate appellant, we have perused stated that tfae accused attacked he threatened her also. PW-3 stated that there was lacerated another lacerated wound on thil temporal and padetal bones place where bone was fractured.1 Ihjury No.2 was sufBcient in th) report is Ex.-P/2. wete chib tf we look into seizure club), it appears that wooden ofone side and 8" ofother sidej can be gafliered from the weapoti leading to fhe assault, part of aboive principle, facts of the deceased wifh wooden club whik: 9" ofone side and 8" ofother both temporal and parietal bones facture of skull bone. The the accused to cause dealh of crime was that the accused attail <»ll<lFc1<fl-< t111C1'l'fr'f3^'<fa|''-I;l< ^3Tf^1T3n^T of Ifae deceased. Hence, offence against the ection 304 Part-H ofthe IPC. ^irgument advanced by leamed eoimsel for the evi|dence of PW-2 Bifiii Bai, eyewitness. She has ^he deceased thrice. When she tried to intervene, G|r. B.R. Sharma, who conducted postmortem, has [ivound on the right side of forehead, there was right side of head, as a result of which both fireictured. Brain mattar was visible from the He has further stated that injury No.2 wag fatal. th^ ordinary course of nature to cauge death. ffis (nemo of weapon of offence i.e. Geda (wooden was 3 feet in length having circumference of9" As per the settled law, intention ofthe accused used, size ofthe weapon, ihe background facts body where blow was given. Ih the light of case disclose Aat the accused assaulted the ;h was 3 feet in length having circumference of i]le, on 1he right side ofhead, as a result ofwhich were fi'actared, brain matter was visible through gave repeated blows, therefore, intention of deceased was writ large. The background of ^ked the deceased on Ae ground that she is hag tke pre^ent sille accdsed tte \ X&HC-78 3ii^r ^rR-fi'* tiqT3IT^Tst>H Barve ^; *<1*1WI a^HT^l 'S3! '^M\v\<i, Vn!\Wl6, (sKtl+iy .^..e....?-.?.'3. CT=[ 200& 3<1^!*1 4d* (yi(^q<,<T) BTdTSKHfNsT^T ttte (Diai), which was objected by which was objected by the dece^ assaulted the deceased, when Utfii and attacked the deeeased. This] the accused attacked flie deceased t)l<ifl-l41-< K|t|flTffte^'<('a|<-<;K ^srf^iTan^T ie deceased, but the accused continued to repeat, sed, thereafter, the accused picked up Lathi and !ii was broken, he picked up Geda (wooden club) act of tfae accused is suggesrive of Ae fact fhat wilh intention to fmish her. In view of Ihe above, w^ are of Ihe considered opinian that there is no merit in tMs appeal, same is liabli|; to be dismissed and it is hereby dismissed. Sd/- L.C.BHADOO Judge Sd/- Sunil Kumar Sinha Judge 11:1!:11 i.iiy \