^: 3 IN ZHE. HIGH COURT OF JUDICATURE AT BIIASP.UR. Cr» Appeal_ of 2001• ^ APPELLANT (In Jail) ..'• ^^"..-'^9 ^•M^ ^••y^ ~yv>^'..-"" r^' ^ ^. -r^.^ /- ^> RESPOEIpEigT ^'^ Ayati aged abont 45 years^ Wife of Foka, residen't: of Badainpara^ Cfeltrakoot^ P»S^ LobandigBda^ Distt SB&S2M£. VERSUS Tbe St&te o£ Chfeattisgarh Through P<S. Lohandiguda. APPEAL 13HDER SECTJON 374(2) OF THE CODE OF CRII3INAL PROCEDURE XI-HC-78 ^?T^T^ich (TSTT3TT^T$h^[oh @ 3^ ^i^ici^i, ^Tn^li<o, fs<^iH^< ^l^dl sh^lcb -•^^?t^<^—j«~(>^ 200 311^1 ^5|tt> (lic'^c'^) ^cTTW^T^n^T DB:- Hon*Me 8hrl L.C. Bhattoo. Aff. CJ. & chl^f^^'l HI^^T^fte^iRl^K ^3Tf^R'3TI^T Hon»bleSh»I8unU K Sinha, J» 29-1-2007:- Ms. Nirupaiaa Bajpaijcounsel for fhe appeBant Mr. G.K. Beriwal, Dejputy Advocate General wifh Mr. D.K. Gwalre, Deputy Govt. Advocjate for fhe State/respondent. Oraljudgxnent dictate^. on Dafe. PCT L.C. Bhadoo. Aff. C.J. This appeal is direct^d agamst the judgment of convictk>n and order of sentence A Additional Sessions Judj ited 10-11-2000 passed by the 3rd ie, Bastar at Jagdalpur, ia S.T. No. 17/2000 whercby leanjied Additional Sessions Judge afker holding fhe accused/appel^ant giully for commission of oflFence under Section 302 of fh| im.prisonnient for life & to I.P.C-, sentenced her to undergo pay a fine of Rs.5,000/-, ia defaidt of payment offiine to furfher iu|idergo R.I. for one year. The case of fhe prose^ution is fhat on 22-10-99 at about 10 a.ni. accused/appellant Ayajtt attacked her husbaad Pokawith axe, as a resiilt ofwhich he suc^umibed to fhe iajuries. Thereafter, she called Maagal (PW-1) who Station Lohaadiguda to fhe his residence. Ayati caxne lodged report (Ex.-P/l) in the PoHce eflfect fhat at about 12 noon he was at aod infbnned him fhat ia coniiection with money some quairel tjook place between her aad Foka, her husband, TF?^B^fe:-esteBe^»|a, she attacked Foka wifh axe on fhe right side ofchest, he is tym[g on fhe ground. He went to fhe house P.T.O. XI-HC-78 3TT^T^rR^i<=h c^TT^I^l5b^i<=h ^. *ll+icrll sh*licb S^ET^^TRn^pT, ^^^1(0, fa^wy ..C':.4..?A. IS ^ 200 I 311^1 ^sich (I!^3^^) ^RTrW^f?cT3TT^T <=hl^f^l41vl ^ll^<rlT ^ fe^ <Ri^l< ^3Tf^T3TT^T of accused aad saw fhat Fo|ka was lyiag on the ground, blood was oozing out ofthe iajiiries. H^ called ofher viU^ers, Receiving fhis report,| Station House Ofi&cer, Police Station registercd crmie under Secjtion 307 of the IPC, lefit fbr scene of occiirrence, prepared site p|an (Ex."P/2). In fhe nieanthne, Foka was taken to fhe hospital, a^L about 7.15 p.xn. he succiinibed to fhe itijuries ia fhe hospital, TIjierefore, Investigating Officer prepared inquest (Ex.-P/3) on fhe b<|)dy of Foka. He took into possession plam. soil & blood stamed sjoil froni the place of occurrence under Ex.-P/4. Dr. Birendra Th|akur (PW-7) examined injuries and prepared uijiuy report Ex After coxapletion of th .-P/5-A. After the deafh of Foka, postmortem was conduct^d ia the Prfmaiy Health Centre, Lohaadiguda, but fhe docto^ has not been examiaed. e uivestigation, charge-sheet was filed agamst fhe accused ia fh^ Court of C.J,M., Jagdalpur, who ia turu, committed the case 1|o fhe Sessmns Jude, Jagdalpur fix>m where learaed 3rd Additiiona|l Sessions Judge received the case on transfer for trial. Prosecution in orderl accused exainined 7 witae^ recorded under Section 311 matenal appearing agamst| stated fhat she is ianocent to establish the charge agamst fhe feses. Statenient of fhe accused was $ of the Cr.P.C- in which she denied her in fhe prosecution evidence aiid s|iid has been implicated in a false case, P.T.O. XI-HC-78 w^r^T^icb ^l ^)^w 3^T ^lNKrt^, ^Tfl^^Ko, ^crlH^< ^l^dl sh^lcb *<»• * »y-*'<(-^«** «^w^ 200 / ^l ^5|cb (y^<s1^T) ?^T8tR:^?cT3n^T -^- Leamed Additional Se^ counsel for rcspective pa^ties, accused/appeUaat as aforeD^entioned We have heard leame4 tbe Leamed counsel for accused made extra judicial| Sonaru, PW-3 Bhursu aad fhese witaesses, it is not cle^ir confession voluntarily iD.voljyiag Froxn fhe cross-examinatioi record fhat accused namely quarrelling aad trying to husband and he died, IPC was not niade out. On the ofher hand, supported the judgxnent Haviag heard leanie|d perused evidence of examiaation-inrchief, has wife of fhe deceased came between her and her fliat connection, she attack^d side of chest In cross-exaiiii fhlese stated husbalnd fiot seen fhe accused accused disclosed to hiaji cbi^fd^Ti Hi^cnT^<teT^'<Ri«i< ^3Tf^R'3:TT^T •sions Judge afker hearing argiunent of ?s, convfcted and sentenced fhe counsel for fhe pardes, accused/appeBaat ai^ued fhat tihie [confession before PW-1 Mangal, PW-2 [PW-4 Gajgu, but fix>m fhe evidence of fhat fhe accused made extea judicial herself ia the crime ia question, of fhese witaesses, it has comie on Ayati ha^stated fhat when they were s4atch axe, ia fhat proCTsss, axe hit her Therlsfore, offence under Section 302 ofthe le^rned counsel for fhe State/respondent offbe trial Coiirt. counsel for fhe parties, we have witnesses. PW-1 Mangal, ia fhat about 4 monfhs back Ayati, Tiim and said that fhere was quarrel Foka ui connection wittt money, in c^d Foka wifh axe which hit on fhe right exa4miation, he has stated fhat he himself ^issaulting fhe deceased. Hcwever, fhe fhat there was some quarrel in P.T.O. XI-HC-78 W^T^Tf^TToF ^T3TT^T$b^|ch •l:y^ k © +11HC11 5b+11<si> ^ET ^l^Kn^, ^Tfl<rlll(o, facrtl<M^< ..C)...A...2.$.. ^[ 200 / 3^1^1 ^5|Ch ?^<TT^K;Erf?<T3:TT^T - ^- sustAined connection wifh nioney, process, fhe deceased cross-exaiEunation, he has| Sunilar is fhe evidence of examiaation that Ayati dis4 j6om Foka which was not quarrel between the two, axe, saine hit on the che| Sinular is fhe evidence of fhat he was iaformed by tijiey were tiymg to snatch axe, ia fhat iajuries on fhe chest In para-5 of stated that axe was of fhe deceased. pW-2 Sonaru, who has stated ia cross- ^losed to him fhat she demaiided money ^iven by him, fherefore, fhere was some fhat process, while txymg to snatch he^t of Foka and he sustained injuries. |PW-3 Bhursu. PW-4 Gajju has stated M^ingal, not by Ayati. Therefore, jfroin the| prosecution has not bee4 attacked fhe deceased wiflfa. she attacked fhe deceased attackiag wifh axe, she is evidence, it is proved fhat | being deadly weapon, ia injuries on the right side ol fhe eveiung as a result of fhe accused comes uiid^ deadly weapon, when quarrellmg, fhe accused w^ chest of Foka, which was deafh of Foka, therefore,] negUgent act of the accusec| chi^f^i^1vi ^i^^iT^'tel:^'<Ri^i< ^3Tf^T3T(^T above evidence of ffaese witnesses, able to establish fhat fhe accused axe wifh iatention to cause deafh or wifh axe having kaowledge that by U|kety to cause deafh. However, fix>in fhe |fhe accused was tiying to snatch axe, |fhat process, fhe deceased sustamed chest, which proved fatal, Foka died ia of 4yuries sustained by him, thercfore, act jsr rash aad negl^ent, as fhe axe beiag ftte accused aad fhe deceased were ^s tiymg to snatch axe, which hit on the proximate aad siifficient cause for the Foka died on accoiint of rash aad L, as such, ofiFence under Section 302 of P.T.O. XI-HC-78 3^T ^l^ld^, ^Tfl^^Ko, fa<ni<Hy< +11*1(-11 Sh+lich _..C:7;.4...^ t^ -^./.-^-/-y-.. ^ 2ooJ ^i ^5icb (y<i^<^r) 3TT^r^rR^ich cTSTT^TT^T^TW ^ ^ Barye ^ ?^TW^f?cT3TT^T s ^ fhe I.P.C. was not inade outl chi^f^i41ri ^i^^T^'tec^'<Ri^i< ^3T^T3TI^?T 1agaiast the accused. On facts, offence under Section 304-A offhe ^PC was niade out agamst the accused, In fhe result, fhe ap] sentence imposed upon thc of fhe I.P.C. are set aside, Section 304-A ofthe IPC ani The accused/appeUaat is fhereby she has already se] released forthwifh, unless case. Sd/- Ag. Chief Justice is partty allowed, Conviction and accused/appeUant under Section 302 istead thereof, she is convicted under sentenced to undex^o R,I, for 2 years. ited to be ia custody siace 24-10-99 out fhe sentence, as such, she be to be detamed in aay other Sd/- Sunil Kumar Sinha Judge P.T.O. ^-