<:':• l)ivhiorlSench^^. . ^rini!na!) IN T S HIGH COUKT OF JlffiiICATUP.E OF M.P. AT^JAB^.IPtJR', <37& .,,_. Crimin&l Appeal No. ———OF 1997. Appsllant« ( In jail) 7^^7 •StO 0!l-"i«'*a«<*»**BaMUM«*i«M*ai>»itBBBStE£: !?( •ft'iTt*-- tr"'-.;?; jt i?'t»*.i«t»Wtt,l j^(a)>*oi»ut,itft({:»Ee;«- -i ?r;t*-(M- r:}OVOC8E8 ^ '7r^> Respondeat. Jhari @ tfeerachaad Gond, j •<•'..,'-.— . ^^ ! socfOS Sobran Gond, aged 25 years, j Occupation Agri-cultural r/o village Karra P.S. Cfaalgalx Eistti Sargoja Versus 1 The State o£•M.P» I 3'hrough tbe Police stationChalgali, Distt; Sarguja M.P. CRIMINAI, APPEAL VtSSSR SECIION 374(2) GF THE COHE OF CRIMENj'LL PROCBBURE 1973. -. / 1-'?-;: XI-HC-22 •s^ -i|i4!ci'i|, wAw . i'lcii'yy T @ an^r^i R-ti'* sn^[ *-HI^ • ^<T raiticn -^.&t^Q^.a^j^ 311^1'gSHWHfeT DIVISION BENCH: HON'E • & HON SlE Appellant CRIMINALArt'PEAL N0. 978 of 1997 -ihari®Heerachand Qond Respondent Shri F.S. Khare, tearned :Shri J. D. Bajpai, learnad .P.3. Bhatia, tearned Panel Law^e ^t*fl<rfiil'f ""EP^ ^ I^St' <Ri|^t< ^K -^h^Sf^S SHRIL.C.BHADOO BLE SHRtDHIRENDRA MISHRA, JJ Vs. ^tate ofMadhya Pradesh cotinse for the appetlant. - Additional Public Prosecutor with Shri ir for the resDondenVState. ORAL L.C.Bhadoo.J (1 ^.02.2006} The appellant has preferre; Criminal Procedure Code questio^ing judgment of conviction and order] learned First Additional Session^ whereby the learned Session guiity for commission ofthe offencje Code sentenced him to undergo irfipris Ju<|g Case of the prosecufion ih'brieT is Villag^ l^arri (Chalgali) and one v]ilage?'Basy^Tied four years b; JUDGMENT thisappeal under Section 374(2) of the the legality and correctness of the |of sentence dated 01.05.97 passed by [ Judge,Ambikapur in S.T. No. 51/96 )e after holding the accused/appellant i(je underSection 302 of the tndian Penal irfiprisonment for life. |hat P.W.-1 NantitU lodged the report P-1 in the police station Karri (Chaig^i) to the effect that he is the resident of |Kendi daughter of Sukhnandan of his tek with the accused/appellant Jhari @ [^^R^1 4- XI-HC-22 3I1^[W ft-<i.<* sn^r Wtfe^a 'S^ -^MM^, '^WT®,feltBgT •WTPH'^CTffi^A^^^^ cbW^^f HW^ ^fe^ ^R^ i? dlpgt) an^t Heerachand Gond and Kendi use^l to go to her in laws piace but most of the time she used to remain at h^rparents house. 1-fer husband i.e. the May 1995 at about 12.00 in the accused came and informed Rarrlnandan yncle of deceased that he wil) <^-fc not keepKendiand therefqreshe ^e gft mamedsomewhereelse. On 20'th ^id night the accused assaulted Kendi with the axe on his neclt and hesjd.as a result of which she died. P.W.2 Nago mother ofdeceased and Gu|jdi Malik Maade saw the accysedwhiie assaulting her daughtsr and also jwhen h©was running away. Receivjng this report, Incharge, Polics Stati^nKam (Chalgali) registered the case underSection 302 ofthe IPC, lefj'for the scene ofoccurrence, prepared the site plan P-3 after gjving nc|lice to the panchas P-4 and prepared Panchnama P-5 of the body of K^idi Bai. Blood stained soil and piain soil were taken into possession from t(ie place of occurrence under P-6. Body of Kendi Bai was sent to the Prijnary Health Centre, Pratappur for post mortem examination underP-7wljere Dr, R. L. Thakur condueted the posf mortem and prepared the post rjiortem report P-11,The clothes ofthe accused were taken into posse^ion under P-8 and the clothes of the deceased and the axe sent by ^he doctor were taken into possession under P-9. After completion ofthej learned Adcfitional Session Judge investigatiGn the charge sheet was fited in the Court of-Judicial Magistrat^ RrstClass, Ramanujganj who, in turn .committed the case tp the Sessfons Court, Ambikapur from where the received the case on transfer for trial. The prosecution in ordef ~to est^blish the charge against the accused examined ssven witnesses. StaNment of the accused was also recorded .p. in which he denied the prosecutjon under So6tion 313 of the Cr.P.( 2i- -'^c'i. _-\ ^ng^ XI-HC-22 SiRRl"^! ftaWSIT^T sfilfl^ ^fia' 'svi •^Tiqieig, ^y'i^-'^^y ^.&.^^^7 "HlKCTfsBWqi " • •y-l 200 ^A»^WIWffftd -5-i evidence andstated that he is innjicent and he has been faisely implicated in the crime. AfSer hearing the arguments qfj counsel for the accused/appellajit convicted and sentenced ttie paragraph oneofthisjudgment. '^TS^T^h' TTR^f ^ f^il 'tfit^K ^'sipgi? an^i the Additionai Pubii'c Prosecutor and t, learned Additional Sessions Judge accused/appellant as rnentioned in We have heardShri F.S. Khare, l^arned counsel forthe accused/appellant and Shri J.D.Bajpai learned jAddl. PubUc Prosecutor and Shri M.P.S.Bhafia,P.L.onbehalfofth4State. ' Homicidal nature'ofdeath of Kenc|i is not in dispute. As far as the involvement of concernea, tearned counsel for crime in question was committedi ^ . -'. .. . ... ^eA a? such it was not possible f^r and P.W.5 Malik Chand to identift of the accused/appellant .has not the arguments advanced by th^ perused the statements W Nankij the mother of the deeeased hasl daughters Kendi, Parvati and het house, the accused came afteij ., ...^ „—.— -„„ attacked^(endi on her neck and ,t| started^guting and the accijsed (he accused/appellant in the crime is jthe accused/appellant argued that the |in the midnight and there was darkness the witnesses namely P.W.-2 Nago Bai the accused, therefore the invoh/ement >een established. In orderto appreciate h^ counsel for the appellant we have and Malik Chand. P.W.-2 Nago who is [stated that at night she along with her son Malik Chand were sleeping in the opening the door of the house and i-jead. On hearing the soundshe woke up^ ran away after attacking. Thereaffer [Tft^ ^r^*i XI-HC-22 y -3-sr -i4Wici*f; •gTiNiqs, 'fearey sn^rwi fci-ii.i* 3T!i5I ^tii<^ ^^? <WRwa»w<*---^^••'^fc sii^i'^giWtfe her brother in law Ram Nandan, ^raf?pft;T'WRTf'? fe^t <iatt$l< ^? siPti*? sn^i Vishambar, Sandhu and Nanku came there.in the cross examination sl^e.has stated that one week before the incident, accused came and left ^ndi at her residence saying'that he will not keep her daughter at his r^idence and she may be ^Wmamed somewhere else. in paragraph t^ee she has admitted that the time was about 1.00 a.m. and it was dark rjight, The accused came and on raising shout by her he ran away.She sajw the accused when he turned his face back while running away and sa<|/that he is her son in law. Thus, itis incorrect to say that she was n^t able to identify theaccysed due to darkness. It is also incorrect to ^ay that as the accused deserted her daughter that js why she is implii Chand whois said to have been sl Isating him in fafse case. P.W.-5 Malik ^eping near deceased Kendi hasstated jnstance of his <nother. This witne: his house. P.W.-2 Nago Bai has Matik Chand who has clearly sta( accused and even Nago Bai P.W4 was runn|rig away and turned his >. / that accused is his brother in tawjand when in the night, his sister raised the cries hewoke up and saw thatjthe accused was running awayand his sister was lying and there was injury on his head and rieck. His mother was also present there and accus^d left the axe onthe spot. In the cross examination he has stated that whjen his sister Pan/ati raised the cries he woke up and it was disclosed t6 <he police. It is incorreGtto say that he has not seen the accused attackir^g his sister ancf he issayingthis at the ' s saw the accused running away from stated that.the aceused attacked her daughter ahd on heanng the soi|nd she saw the accused and started raising shout but the acciised ran ^way. Similar is the evidence of P.W.-5 ledthat they were able to identify the L-2 has stated that when the accused face backward she was abie to identify -ln^ ^^^ s XI-HC-22 's^g ^<l4l<-t<sl, an1*f*is; Wfiwy *nnwr wiieh cj^..^o[sh 311^1'^! ^riyan^ '^Rf^ "tii^cT s ^i^i s^o^re^i^ —s- In view of the above evidence wef the arguments advanced by the 'ysWnot able to identify the accuse^l/appellant is without foree. 1 are of the considered opinion that ftan h+Cft' li, ^ounsel for the appellant, the witnesses evidence also and as per Dr. R.L ^Rf^S^t'l '^P-S^ ^fe^ ^Rq^K ^sipOTsn^i ^B^ The evidence ofthese two witnes&es stands con-oborated by th®medical Thakur, two injuries were found on the body, one in the occipitalregiQn ^nd oneonthe neck and as a result of the neck injury whjch was on the| Carotic artery was found cut and| i Thairite bone, trachea Isophagrus and jthere was injuryon the parietal region. Therefore in view of the above, tt^e involvement of the accused/appellant in the crime in question is establi^hed and we do not find any iliegality or inflrmityln the judgment of the tria "SdT^ L.G. Bhndoo Judge Court. !n the result, the appeal being de^oid of merits deserves ta bedismissed. It is accordingly dismissed. Sd/- DhuendraMishra Judge •^t ^ !•i •'i .^.ss.- [tf^"^fe^