u ••' /.^ ^ ' ^' ^' fo- ^" .^ •i- ^ '^'^i-^^"!^ ,. ^ r IN THB HIGH COURT OF JBDICATUKE. M.P.--''! JABALPUR. CRIMINAL APPEAL N0. \-><; \ OF 1999 ^',/" ^" Hanglu, S/o Shri.Bhagwani Gond, Aged about 35 years. R/o village-"Sad'ak Ghlrchari, Police Station Bagnadi, District- Rajnandgaon, (M.P.). ***** APPELTANT ?ln Jall) ' 1 VE R 'S US The ateate of Madhya Pradesh, <- Througb- arakshi Kenj3ra Baghnadi, Dlstrlct- Rajnandgaon, ****.* RESPONDENT CRmiN&L APPEAL VST-ES. SECTION 374(2) OE THE CODE OF CRIMINAL PROCEDURE .rfia XI-HC-78 ii^m a»*n^ 3^r-i<i^i<«i<i,diflti'i<^,Ricfiy^ . .c.-^^...^P....l3.^3^I-5. *<<„*»••y^ *•* v • • •••»<n »y» 200 3TI^?TV^SK (l^cli^slifVf) an^rqirftqra; cW3n^rsh*f iilSi;lig(g:B 'l'in^ES'g^^S? BCTWHfN'sn^r Division Bench: - '• ~ Hon'ble Mr. L.C. Bhadoo, Ag. C.i Hon'ble Mr. Sunil Kumar Sinha. 3/1/2007 Shri S.K. Dadsena, counsel Shri Ravindra Agrawal, fan^l Oral judgment dictated on-D^ )or the appellant. jl Lawyer for the State/respondent. 9is. L.C. Bhadoo, Aa. C.J. agair|st This appeal is directed sentence dated 10 June 19M pj Rajnandgaon, in S.T. No.142/98wfl after holding the accused/appell Section302ofthe!.P.C.,sentence4 to pay a fine of Rs.1,000/-, in def^i R.l. for one year. He has chaileng^d llarlt The case of the prosecutionj 6 p.m. when deceased Temu @ Plt< coming on cycle, the accused caugjht and Temu fel! down, thereaftei) Phaneshwar with a knife (Churi)| intervene, the accused threatened to ieave the place, as a result of inj he succumbed to the injuries on th|6 witnessed by Firangi, Mallu, Vijay| Kishore gave merg intimation (fx. (Ex.-P/11) was registered forcomnfi ^PTfcTifh'WRff¥fet^ rfSfRR ^aif^iTsn^r jst the judgment of conviction and order of ^ssed by 2 Additional Sessions Judge, |ereby tearned Additional Sessions Judge guilty for commission of offence under him to undergo imprisonment for life and jult of payment of fine to further undergo the same in this appeal. in brief, is that on 20th July 1998 at about (aneshwar along with Mallu (PW-1 0) were hold of cycle, £isa result of which Mailu accused Manglu attacked Temu When Mallu and Firangiram tried to them that he will kill them and asked them luries sustained by Temu @ Phaneshwar, & spot instantaneously. The incident was Kumar, Malinbai and Punaram. Kamal (.-P/10) on the basis of which F.I.R. ission of offence under Section 302 ofthe P.T.O. l.3 XI-HC-78 3:6?-<i|tiiw<i,®T{lwi<o,fti'ii+iy W^TCTT St+llch W[ 200 3n^?r<ra?R ('^5g^!ET) an^rw R.fi<t> (WISlRWsbtflch ^nw^ffsn^r c *iit<a<fl-i tii*ifiTffteA<Ri«i< ^isri^irsn^T .^ dred decebsed !.P.C.. The investigation was handj left for scene of occurrence, prep^ir occurrence, after giving notice (Ex.|- (Ex.-P/13) on the body of the possession sleepers of the accyse(p, from the place of occurrence, P/15. While in the police custodij, P/16) regarding th®place where he| wearing at the time of commission| articles were taken into possession P/17. The body of dsceased Temu examination to the Primary Health] Dr. S.K. Ahuja (PW-6) conducted prepared postmortem report Ex.-P/^ due to excessive haemorrhage death was homicidal in nature. Forensic Science Laboratory, Raip|j report Ex.-°/18 was received. i^d over to H.L. Shukla, sub inspector, he site plan (Ex.-P/12) of the place of -P/14) to the Panchas, prepared inquest I. The Investigating Officer took into i, cap of the deceased and other articles >4d stained soil and plain soil under Ex.- She accused gave memorandum (Ex.- kept the knife and clothes which he was |of offence. In pursuance of that, above lat the instance of the accused under Ex.- |@ Phaneshwar was sent for postmortem [Centre, Churiya under Ex.-P/9-A where plastmortem on the body of the deceased, and opined that cause of death is shock from Injury Nos.1 & 2. The mode of recovered articles were sent to the ir for chemical examination from where Tesijltipg The After completion of usual inv^ the accused in the Courtof Chief J|i turn, committed the case to the Se^sions 2 Additionat Sessions Judge recei^ ^stigation, charge sheet was filed against ydicial Magistrate, Rajnandgaon, who in Judge, Rajnandgaon from where ^ed the case on transfer. The prosecution in order te' examined 21 witnesses. Statemeht Section 313 of the Cr.P.C. in which him in the prosecution evidence (stablish the charge against the accused of the accused was recorded under fie denied the material appearing against |and stated that he has been falsely P.T.O. XI-HC-78 3^ •<<i<iiwi, aifl'y'is, Rifiwy HTO<'IT aiWttl ^ 200 3n^?T<ra?R' (^cii^ai^ir) sn^r qit (s-tiqi cWTSn^TTsbtii* ?RTOT tri^T sn^T —-.'?- implicated in the crime merely on tl^e doubt, he is innocent and he has not committed any offence. Learned Additional Sessions and perusal of the record,conv aforementioned. W®have heard learned co( Judge after hearing respective counsei cted and sentenced the accused as jnsel for the parties and perused the record. Learned counsel for the accu< death of deceased Temu @ Phane^hwar evidence of PW-2 Punaram, PW-iq Sai & PW-14 Vijay Kumar, asalso 6), who has stated that he conduct^i Phaneshwar on 21-7-98, he found of Temu @ Phaneshvrar, as a result) 7 & 8 ribs were fractured, cauj f excessive haemorrhage, injuries homicidai, it is estabiished that deatlf homicida! in nature. As far as involvement of concerned, as perthe prosecution c^ Punaram, PW-10 Mallu, PW-12 Firahs iKumar. Learned counsel f^r the Iground that at the time of the incide^it 'not possible for the witnesses to id< the persbn who attacked ihe deceas^ »i<<tfi4l-iHiHnTfffecA<.Ri<^i< ^SI^tf 311^1 ^sd/appellant has not disputed homicidal Apart from that, from the ocular Mallu, PW-12 Firangiram, PW-13 Malin rtiedical evidence of Dr. S.K. Ahuja (PW- t^d postmortem on the body of Temu @ a^rrany as 7 incised wounds on the body |of Injury Nos. 1 & 2, tung was damaged, te of death was shock as a resuit of wfere ante-mortem in nature, death was of deceased Temu @ Phaneshwar was |he accused in crime in question is kse, the incident was witnessed by PW-2 igiram, PW-13 Malin Bai & PW-14 Vijay ajccused/appeiiant mainly argued on the there was darkness, thersfore, it was ^ntify the accused correctly that he was P.T.O. r XI-HC-78 3^ airaRW, »T{lti'i<?,ftfiwy ^tl *<i*irtra»Hiw ^ 3<i^s»iyaa> (>(c(!^<i)(;y) Sl^TiRrf^TR; astl W^T sti*li<t> -i ^fIWttfefW^T A On the Other harid, learrfed counsel for the State/respondent supported the judgmentofthe trial Qourt. In order to appreciate the the accused/appellant, we have RA/-2 Punaram has stated that he| place of occurrence. He saw that t\ in cross-examination, he has stateilt but it is incorrect to say that he cou| darkness. He identified the accuss<| asked him to run away from the pl^ from the place. ar^ument advanced by iearned counset for scjrutinized the evidence of eyewitnesses. |along with friends was piaying near the |ie accused was attacking the deceased. that it is true that there was darkness, |d not identity the accused on account of on account of his voice, as the accused l^ce, as a result of which they run away starfed Similarly, PW-10 Mailu has deceased Temu went to the hou^ electricity fitting. He asked Temu') house of Shh/ for repairing elsctriciy were going back on bicycte, near hold of his bicycte, as a result of whij caught hoid of deceased and repeatedly on chest. However, he| injury was inflicted. He became Singh and informed the wife of Son went to his house, as the accused also kiil him. From the eyidence oi atong with deceased was coming hold of cycle, as a result of which) attacked the decsased. Therefore,) Wifepft^ ttffRft'ft'tetA^R?R ^srf^irsn^r ^tated that on 20th July 98 he along with je of one Rana in viilage Chirehari for to wait on the road and he went to the t. He returned within 10-15 minutes, they :|ie house of Firangi the accused caught jph, they fell down, thereafter the accused ir|ed attacking with a knife. He attacked could not see the piace where, in fact, frjghtened and entered the house of Son pingh about the incident. From there, he ^sked him to run away otherwise he wili this witness, it is established that Mallu cycle, on th®way, the accused caught they feli down, thereafter, the accused this witness saw the accused attacking P.T.O. on XI-HC-78 Wtlfll Sh*11<st> 3^ •iiwtcxi, ®T(ly'i<o,ficiiyy L./y/0. /- W[ 200 311^1 >4ath ('{^^^ff) sn^Tqirf^iN; W 3TI^?T Stl1 askeld |from close range, the accused ]him. Hence, in view of this evidenc^ Iwitness was not abte to identifythe a^ CTaTWBf^?3II^T ^ Even the evidence of these tevidence of PW-12 Firangiram n$ar deceased. He has stated that on and saw that the accused was accused asked him to run away has also corroborated the above accused attacking the deceased aged about 11 years, has also stated that he was playing along wi' saw the accused attacking the are independent witnesses. in able to elicit any circumstance deposed either on accounf of intei animosity against the deceased. consistent and same inspires Mo confid^nce Learned counsel for the accL) any circumstance which makes She untrustworthy. Therefore, in view o| as a!so recovery of knife at the instf involvement of the accused in ttte Leamed counset for the manner in which incident occurred, travel beyond Section 304 Part-11 o ioi<ittfl<fl«<'•llirtT^' fec& <Rl'bll<, ^a^irsn^r him to run away otherwi^e ne.will Kit! -^^Wtoe-t-', , no argument can be aadueed that this :cused. witnesses stands corroborated by the Iwhose house the accused attacked the screams, he came out of his house the deceased with knife. The he will kill him. PW-13 Malin Bai ^vidence and stated that she saw the a knife. PW-14 Vijay Kumar, child the above evidence. He has (h Radheshyam, Puran & 2-3 boys. He with a knife. All these witnesses i-examination, ctefence has not been shows that these witnesses have in the deceased or on account of The evidence of these witnesses is of the Court. he^ring at(acking othtwise Wlth coritoborated dec4ased crdss- which intejest jsed/appellant was not able to point out 4vidence of these witnesses unreliable or the above evidence of these witnesses insfence of the accused clearly establishes crihiein question. ac4used/appellant further argued that the t|ie offence against the accused does not the I.P.C., as the prosecution has not P.T.O. XI-HC-78 'ssi -<i|i|i<«i<<,®^ilwis,ftftwy ^r^- HIHWI ai*<l<*l ^ 200 3(1^1 ifach (i^cit^q^ff) sn^rwf^iw crar sn^r »*)i<t) ¥RIIWflfer3TI^T 6- *l<<Ffl41'1 tITORff ^'fet^ ^RCTC ^a.rf^ilsnSsr been ableto adduce evidence regar<?ing motive or intention ofthe accused to cause death ofthe deceased. argjument peritsed eyewitne^ses In order to appreciate the |the accused/appellant, we have Idoctor as aiso evidence of the accused attacked the decea'seitt Ex.-P/9 the deceased sustained 7'iA. between 6tn & 7th rib, there was cut was extending up to the tung,as a| imuscles were also ctamaged, injury] side of chest in the size of 3" x 2" in fractured, muscles & Artery were daji accused attacked with a knife, as he|s ;sustained 8 injuries, out ofwhich result of which ribs were fracturedj ;excessive haemorrhage which ;deceased. In the matter of 2005 Cri.L.J. S84, in para-22, the At(i ^as a ru!e of universal application :302 IPC is rufed out. It would ^veapon used, size of the weapon), |background facts leading to the Igiven are some of the factors to be| laccused. & he|s Injijry was Thang^ya tl^t dep^nd assetult advanced by iearned counsel for ppstmortem report, evidence of the >. As per the eyewitnesses evidence, with knife, as psr postmortem report i^eised wounds, injury No.1 was infiicted \k/ound in the size of 2" x 0.5" x 4", which ]result of this injury lung was damaged, No.2 was on auxiliary line on the right |he shape of swelling, 7 & 8"' ribs were jmaged, as per the ocular evidence, the been mentioned earlier, the deceased Nos. 1 & 2 v/ere on the vital part, as a jiung was damaged which resulted into the main cause for death of the V. State of Tamil Nadu reported in }ex Court observed that it cannot be said whenever one blow is given Section upon the facts of each case. Ths i|, place where the assauit took place, t, part of the body where the blow was tconsidered toascertain intention of the !n the present case, the ^angerous weapon, out ofwhich twq acdused attacked repeatedly with a knife, fatal injuries were inflicted on the chest, P.T.O. XI-HC-78 HIHWI a>^rr% f ?ar'<<i<iici<<,eiT[l«*is,(q<iwy -, ^^. ^). ^200 3ii^!;i Maco (i^igg^Er) sn^r °RTR-ii<* <raT:W^IsbH Barve g^TwgfeTsn^r -T- as a result of which iung was dama^ed, as atso 7"' & S"' ribs were fractured. The repetitive assault made-by the ^ with a dangerous weapon like knif^ cause death of the deceased. successful In establishing the fact with mtention to cause his death. |ccused that too on vital part of the body establishes intention of the accused to (Therefore, the prosecution has been that the accused attacked the deceased or infirmity in the judgment of the trid and sound reasoning. THere is no Sdf- Acting Chief Justice «bl<<t<fl<H-l t||tlci'l'^'te<A<Rl'KK ^sri^irgn^sT m- w In the result, we are of the cojisidered opiniQn that there is no iltegality Court. The judgment is based on legal ground before us to interfere with the finding of the trial Court. The app^al being devoid of merit, is iiable to be dismissed and it is hereby dismissed]. _A- Sd/- SunilKumarSiBba Judge -1i