•I'tl '^'sl^t^s CF0000057609 No, :^ -2, 2, APPEAL OF PRISONE T Name 'fflKfa e" ,?^* • -Ai.' "f - -,.'^:7u&-»' /Vi^^~Zy~^t .•£• Father's Name _^<^^e Resldence SJ7:S:7 ^fy'ii' :2^_<-f_ ^ Sentenced to -^Ay^^-^'^^A^ ,f <a^A^_, I-^.C- rc-,'^ Under section Sc^.?^.^, ) by •QS_rs3/'s»oy on^ ^- // / $? 9 5'7-..'v.^ S^/87@ J/^/^7 It is explaine d to the prisoner thit if he sti-fces or wishea -fco be represent ed by a legal prgctitioner the AppelTfce Court wi 11 not proce ed with the base for seven d''.ys unless the legal practitioner appears. If the legal pri-ctitionec;.dpes not appep.r with in seven days he may- be heard at all ifthe prison.er states that he does not; wish to toe represented by legql prac-fci- tioner the court mgy procesd at once with the cgse and will not be obliged -to give a hearing to any leggl pracfi'tioner who should appear. 1. 2, 5, 4, Date of gpplicg-fcion for copy of Judgemept Date of lAlich copy received : ^zf /, / f-,?9 Date on i»hich Appeol sent : S/ / / / y.,Q Whe-fcher the prisoner wished to be . V^^—T^M^^, represented or not •• ±':a ' ' s^- // / yS No. 33 -^c- Name '7: 'V i:"// <'•/" S2^£-.^£2^ Continued in $2^^'-<27^^-/.'g'5Jail _ .J^&^^r ^cnZ -. N3. _^of7y " .. dated ^//^&^ 'orwarded to the CHIEF JUDICTAL MAGISTRATE f^i ;o gather with a copy of judgement or order passed in the C.I.E'C- 'or favour of transmission -to the proper Appillia'te Cour't. t- Superintendent-Ceir(Srql/Di s: -Su^F-rt^ -r^ j^ ^- /tL .i-l^^.—-^ "•i "iw •{tf^ ;.r.'^ ^^^ ! ^» • . ' ' ' '"' *5 *':^\-:i ^W D.ate of receipt in C.J.M.'s Office Oate of reoeipt of record to accompany Mano of Appegl of the Appeliate Cour-t ^o. ^ 4- f^l _. _ Dated _£ Forwarded to the <t,oc^^/i.i ^3-JLJAI- '•'(A^V " C.J.Mggis'trr;te « n ,A »„«»-» "'f:. t '*' " * w / .':. Date of receipt in Appliate court Cr,,ABpca|Wo.292_ofl! Hesila Lalckhu alias Lakhniu versus- State of Cliliattisgarh For consideranon Sd/- Dilip Raosaheb Deshmukh Judge Honlile ShriJustice PaMiruddiu ^cxg^, Fakhruddin Judge et.fi Post tbr ^7 .06.2005 —:—'"^-.._\ Sd/- rE l°7.06.2005 HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.Appeal No.292 of 1989 Hemla Lakkhu alias Lakhinu -Versus- State of Chhattisgarh CORAM: HON'BLE SHRI FAKHRUDDIN. HON'BLE SHRIJMUP RAOSAHBB DESHMUKH, JJ AppeUaatby Sm.t. Kiraa Siagh, Advocate. State by Shri Ashish Shukla, Govt. Advocate J U D GM E N T Per Dilip R. Deshmukh, J. Heard leamed counsel on inerit. 2. Having been convicted under Section 302 I.P.C. by Shri N.P.Mehar, Sessions Judge, Bastar at Jagdalpur in S.T.No.309/1987 aud S.T.No.310/1987 for committmg murder of Lachhiadhar by ineans of an axe and under Section 304 Part I I.P.C. for fnTnmittiTig culpable hoiuicide not amounting to inurder by causing death of Parvati Bai by ineans of the handle of aa axe on 25.06.1987 atvillage Kifhiyapara Gangalur, P.S. Beejapur, Dist. Bastar and sentenced to Ufe unprisonuient under Section 302 I.P.C. guad furfher sentenced to rigorous imprisoTiment for five yeara under Section 304 Part-I I.P.C. (both sentences to run concurrently), fhe accused-appeUan.t has preferred fhis appeal. llld J.**^ -z-- 3. It is not disputed that deceased Parvati Bai was wife of deceased Lachlundhar axid Snligram (P.W. 1) is the brother of deceased Parvati Bai. 4. Briefly stated fhe prosecution stoiy is that on 25.06.1987 Pan/ati Bai liad goiie to fhe house of her brother SaUgram P.W. 1 for grindiag Dal. Her husbaad deceased Lachliindhar also went fhere. The accused amved after soinettme and deinauded the cock froni Lachliiadhar. Lachhiadar said he bad only one fighter cock. Accused went hoine aiid canie wifh an axe and persisted ia his deinaad. Wbile Lachhindhar aad ts]s wife Parvati. Bai,were being taken by the accused-appellaat towards their house, acfcused dealt a fatal blow by Tangia on the neck of Lachhiadhar causing an incised wouud on left side of neck adnieasuriag 3x2 '/z x 2"just above the left clavicle wifh. inai^uas clear cut aad with left Carotid Artery cut of. Lachhindhar died on fhe spot. Parvati Bai coinplaiiied as to why the accused had kUled her husbaad. The accused said that he wrould also silence her aiid assaulted her wifh ttie blunt side of the Taagia on the nose, which fell her down. The acGused agaui dealt two Tangia blows on the skuU of Parvati Bai. Parvati Bai succumbed to ffae head iujuiy on 27.6.1987. Saligrara P.W. 1 saw fhe entire iucident froin his house aad Shanti Bai P.W.2 witaessed fhe iacident froni a nearby house. Dr. A. R. Gota P.W.5 who couducted the post-niortein on Parvati Bai found one bruise over left teinporal parietal region just above fhe right ear placed verticaUy adiaeasuring W x %" and bruise over left teiriporal parietal regioa posterior and above to the left ear adm.easurm.g 1%" x %", iucised bruise over tip of nose adiaeasuring l/a" x Y2" with J. ^.i4s> -3- bleediug present. He opiaed fhat the death was hoinicidal due to Iiead mjury, which was aate inortem in nature. 5. First Information Report was lodged by Saligrain P.W.l at P.S. Beejapur at 7.30 P.M. on the date of occurrence i-e. 25.6.1989. Post-Mortem. on the dead body of Lachhiadhar was conducted by Dr. A.R. Gota P.W. 5 who found by report Ex. P-8 fhat the deafh of Lachhindhar was due to sjrncope as a result of heniorrhage through fhe left Carotid arteiy, wbich was cut. He found that the iaji-uy was ante inortein and deafh was hoinicidal ia nature. - 6. After invest^ation two separate session trials i.e. S.T.No.309/1987 relatmg to death of Lachlundhar and S.T.No.310/1987 relating to death ofParvati Baiwere held. 7. Chai^es were fraiued by fhe leamed Sessions Judge. The accused abjured his giult but did not lead any evidence. 8. The trial Court reUed upon fhe testimony ofocular witaesses P.W.l Saligram. aad P.W.2 Shauti Bai arid also fhe testimony of P.W.5 Dr. A.R. Gota and convicted & sentenced fhe appeUant for coiiiiaitting murder of Lachlundhar aad culpable hoxuicide not amoujntuig to uiurder as regaids Parvati Bai as shown in para 1 (supra). 9. The only contention of learaed counsel for fhe appeUailt is that P.W.l is the brofher of deceased Parvati Bai, au iaterested witaess and therefore could not be reUed on. Leamed couiisel next contended fhat both the witaesses P.W.l Saligram and P.W.2 Shanti Bai could not have seen ftie iacident as they were at a distance froin fhe place of occurrence. Learaed counsel, however, -1^—. _.--jj. f !:<. -4- did not dispute tbat deattt of Lacchindhar aad Parvati Bai was homicidal in nature. 10. On fhe other hand, leamed Govt. Advocate contended that fhe testixuony of Saligram aud Shaati Bai was un-rebutted ra cross-examiuation aad trustworfhy, fheir presence near the scene of occurrence was natural aud was rightly relied on by fhe trial Court. He furfher contended that fhe testimony of Satigram P.W. 1 could not be discarded inerely on fhe ground ttiat he was fhe brother of deceased Parvati Bai. 11. We have gone fhrough fhe inipugned judgment. We have also perused the record ofS.T.No.309/1987 aad S.T.No.310/1987. We have also given our thoughtftd consideration to ffae ai^uinents advaaced and have also miautely perused fhe testiinony of SaUgram P.W.l and Shaati Bai P.W.2. Parvati Baijust before the iucident had gone to the house of Satigrani to gruid Dal. The iacident had occurred sooii after a hot discussion by the appeUaat wben Lachhindhar refused to deUver his fighter cock to the appeUaat. The evidence of SaUgram P.W.l also shows fhat the appellaat then came with an axe fix>in his house aad holding fhe hands of Lachlundhar, started goiag towards tus house. Parvati. Bai foUowed thein. The witaess furtih.er nacrated that about 40 steps froni his house, the accused-appeUant Suddenly assaulted Lacchiudhar by fhe axe on flie neck, which fell Lachlundhar down. He further narrated fhat upon objection by his sister Parvati. Bai, fhe accused ia order to silence her dealt aaofher Tangia blow on fhe nose of Parvati Bai, which also feU her on fhe ground. The accused dealt two inore Taagia blows on the head of Parvati Bai. -s- AU the fhree blows on Parvati Bai were dealt froin fhe blunt side of Taagia. The presence of this witaess near fhe scene of occurrence is thus natural. In cross-exainuiation, there is nothing to uidicate that he bears any grudge svgainst the appeUant to falsely implicate him. Nofhiag ia his cross-examiuation has been eUcited, whicb woiild rebut his testunony. 12. The secoud witness is Shanti Bai P.W.2 who lives ia a nearby house. She also deposed fhat while the deceased couple Lachlundhar aad Parvati Bai were goiag towards their house, fhe accused came froin behind aad dealt a Tangia blow on fhe neck of Lachhindhar and upon objection by Parvatibai, he dealt Tangia blow flOTUL fhe blunt side on the nose of Parvati Bai and seeiag all fhis, she got frightened aad ran towards fhe river. Leamed counsel for the appellant has also not been able to create auy dent ia fhe testmiony of Shanti Bai during tfae course of arguraents. SaKgram P.W.l aud Shanti Bai P.W.2 fuUy corroborate each other and briiig home fhe guilt of the appellant These witnesses liad fhe opportauiity to see the occurrence aad their presence at the scene of occurrence has beea proved. It is settled law that the testimony of a witaess canaot be discarded inerely on fhe ground tbat fhe witaess is a relative if it has stood the test of cross-examination and iaspires confidence. In fhe instaat case, the presence of SaMgram P.W.l and Shaati Bai P.W.2 near titie scene ofoccurrence is natural, their testimony iaspircs confidence as it has stood the test of cross-examination. The learaed trial Court has dealt with fheir testunony iu paragrapbs 7 to 11. We have gone through the testiiaony ofP.W.l SaUgram aad P.W.2 Shaati Bai and found fhat '^ -6- the trial Court has rightly placed reliance upon it for bruiging hoine fhe guilt of the appellant. 13. Sint. Siagh learaed counsel for the appeUant next conteaded that since fhe entu-e iacident took place in continuity and since fhe leamed trial Judge has held the appeUaut guilty only for offence punishable uader Section 304 Part I ofI.P.C. in S.T.No.310/1987 so far as the death of Parvati Bai is conceraed, the trial Court ought to have convicted fhe appeUant uiider Section 304 Part I I.P.C. -for coiniEUtting culpable honucide not amouilting to niurder of Lachhindhar. She thus contended that the offence so far as fhe deafh of Lachliindhar is conceraed, would at the inost faU under Section 304 Part I aad not uuder Section 302 I.P.C. 14. On the ofher haad,leamed Govt. Advocate contended fhat inurder of Lachhmdhar was committed ia cold blood with faU deUberation since fhe accused had dealt a fatal blow froin the sharp side of Tangia on the neck of the Lacllhindhar kiUing him iiistaiitaaeously on fhe spot. 15. We have considered fhe rival subinissions. Death of Lachhiadhar was caused by the accused ia cold blood aad fhe Tangia blow was inflicted on the neck of Lachliuidliar which iastaataneously kiUed him. Thus fhere is no doubt fhat fhe ofifeace so far as it relates to fhe deceased Lachhiadhar falls squarely under Section 302 of fhe I.P.C. So far as the deafh of Parvati Bai is conceraed, there was no sudden or grave provocation. Iinmediately after kLUiag Lachhindhar with a fatal Tangia blow, fhe accused inflicted as many as tliree blows, though froiii the blunt side of fhe Tangia, on the head of Parvati Bai to silence ber, Parvati Bai succumbed to fhe iujuries on 27.6.1987. The medical opinion of Dr. A.R.Gota P.W.5 shows that deafh of Parvati Bai was hoinicidal due to aute inortein head iajuries sustaiued by her. The entire iacident took place at ttie same tirae and with fh.e sam.e intention of causing deafh. or such bodily iajury as was Ukely to cause deafh. Therefore, while we reject the contention ofthe leamed defence couB.sel, we are unable to subscribe to the view of the trial Court that tbe act of fhe accused-appellant ia causiag fhe death of Parvati. Bai fell uiider Section 304 Part I of the I.P.C. The guilt of the appeUaut under Section 302 of I.P.C. for coTnTnitting inurder of Par^ati Bai was clearly brought hoine by fhe prosecution. However, siuce ftie sentences awarded by the trial Coiirt were to run concurrenfly and the learaed Govt. Advocate has contended fhat fhe appellant has ah-eady been released on 15.08.2001 froin Jagdalpur jail after undeigoiug sentence of life iuiprisoninent and also since fhe State has not preferred aay appeal against the acquittal of fhe appeUaut under Section 302 ofI.P.C. for the offence ofcouuiuttiag inurder of Parvati. Bai, we would not dwell any further on fhe poiat. 15. In the result, fhe appeal fails aad is accordingly dismissed. -a>_ Sd/- Sd/- DilipRaosaheb Deshmukh Judge