XI-HC—78 ^^ ^T f^'1?^ "c?^FT ^ST'^FRNi' ^ wH^ff^p-n^ -3"^ ^TFTRPT, ^^ffiFT^ f^FRi5< ^.4z^^.<:.: ^200 ^'3[^T ^5W 'i^TS^ "^ft^ 3?Tt^f Division Bench. Hon'ble Shri Dhirendra M&hra, 8& Hon?ble Shri Dilip Raosah^b Deshmukh, JJ Criminal ADpeatNo. 1145 of 2002 Appellant (In Jail) Hudhram Pando S|/o Dhuru Pando, Ajged about 32 years, |ccupation-Agriculture, R|/o ( Respondent Present: Mr. Abhay Tiwari, Mr. UNS Deo,learned (Delivered on 4 ^qferqT^r"RT^f ^'ft^ ";(N^R ^'^fOTW^T Tivragudi, PS- Rlamanujnagar, Distt. Surguja ;G) V^rsus Sjtate of Chhattisgarh, Tjhrough Police Station ^aikuntpur, Distt. Koriya (CG) learjned counsel for the appellant. !Govt. Advocate for the State. ORAL J{UDGMENT h March , 2009) Per Dhirendra Mishra, J This criminal ap^eal judgment of convij dated 22nd Octobdr, is directed against the ;tion and order of sentence 2002 passed in Sessions [C—78 ^T^f ^T R^ ^^W^T^RW i^ •g^.^^^^^ ^^^*j^ fa^j^y *<!*t<'ll ^NfSRr •^2oa 3:IT^T'^^(<|qIy^^) ^TOR ztf^^? ^i^l 2-. i^f€Tli's?FR^ff ^ F€^<RI^K ^^tRR ^T^T Trial No. 60/2002| Sessions Judge, convicted appella^t Section 302 of tihe sentenced to undeijgo a fine of Rs.1000/ undergo RI for tt^ murder of his wife Case of the proseci(ition December, 2001 Karamato Bai alon^ his wife Sukwaro Village-Raghuvirpu^ appellant assaultec| over her neck re; death. whereby learned Additional Baikuntpur (Koriya) has Budhram Pando under Indian Penal Code and life imprisonment and pay in default thereof, to further ree months, for committing ^aramato Bai,. i, in brief, is that on 20th while appellant, his wife with Pawan Sai (PW-2) and Bai were returning to their from Kudeli market, the his wife Karamato Bai by axe ulting in her instantaneous Report of the incidje] (PW-1), father of thje 2001 around 11.4CJ the basis of inforfnation Pawan Sai. After registering the offejnce; knt was lodged by Bachchalal deceased, on 21st December, am against the appellant on received by him from 1-eceiving the information and ;, the police proceeded for ^•A<)»UWl^!n^SW,«i,S»t».>*-WR»^%»^ —78 '3"^ -<4i<iW4, ^'^^•1*1^ t^TRT^ 3?r^i ^r'{^rt^ 'cTSTf W^ §b*4i<^ ~<.T HI*(<?11 ^WSfr 1-^'2^'' ^T{^T<^^-L('^t^^Q^; ^n^^f^^TY^r J, the scene of occurr^ of the deceased wa^ presence of witnes^ Bai was sent for al Centre, Baikuntpu (PW-12) conducted t-, where Dr. Ashish Karan >ostmortem and submitted his the place of inciden niemorandum (Ex.P of offence-axe was Ex.P/3. Bloodstain< also seized from hi! of the deceased we articles seized duri bloodstained soil, w ^ptf^frf'^^F ^ fe^ T^R?R ^ ^tRR S??^T ?nce. Inquest over the person performed vide Ex.P/7 in the »es. Dead body of Karamato utopsy to Community Health report Ex.P/16. D|iring investigation, plain 85 bloodstained soil w^re taken into possession from ?: vide Ex.P/2. On the basis of 5) of the appellant, weapon seized from his house vide |d shirt of the appellant was house vide Ex.P/4. Clothing |re seized vide Ex.P/11. The 3ng investigation i.e. plain & ^apon of offence-axe, clothing of the appellant antl the deceased, were sent for chemical examinafcion to Forensic Science Laboratory, Raipur, from where report of Ex.P/18 of the chemical exaijniner was received. 4. After completing injvrestigation, charge-sheet was filed against the Judicial Magistrate appellant in the Court of First Class, Baikuntpur, who, E-HC-^78 CP ^^ ^(<4l<rt^, ^-^^^^, f^^l^t^ WR^rrw^tiss •^^2^0 ^H^T'SF? R'-lt^ ^^ 3W?l 9^*11^ ^, 3Ti^?T1^^ (^i^^) ^^T^R: ^f^T 3??^T in turn, committe) Sessions Judge, same was receivedi learned Additional 3 Learned trial Courtl '^prf^'^^'^fwff ^F fe^'<fa^{< ^ <3tRR 3T?^T jl the case to the Court of Sjurguja (Ambikapur) and the on transfer for trial by the ^essions Judge. framed charge under Section 302 of the IPC agai^ist the appellant, who abjured his guilt. Proseculjion examined 13 witnesses in all in support of itsjcase. Thereafter, statement of the accused was r^corded under Section 313 of Cr.P.C., in which appearing against and pleaded inno< Learned trial Courti respectlve parties, accused/appellant of this judgment. Homicidal death of !he denied the circumstances Ihim in the prosecution case ;ence and false implication. after hearing counsel for the convicted and sentenced the as mentioned in paragraph-1 deceased Karamato Bai is not in dispute. Even ojtherwise, from the evidenceof Pawan Sai (PW-2), who has stated that he saw the appellant assaUlting deceased with axe over her neck, and fu^ther as per evidence of Dr. Ashish Karan, wh(j> conducted postmortem over ^y:::K^- "'^ i ^-s^. M^^^^i^-. I ^B^3;l'% .'3^1 »K—78 '7^ ^J<{1^^ ^^^^> "f®f<'1W^< 3T^¥I^7 MJch ^^ 3?I^T »>Hioh .--<2^ ^ <WH^T(f»*R^ •^200 3Tl^?I"^^ ( '^HW^t^^T^T s cM^<ri<41<'W^ft ^T T^^S I^T^R ^3tfW3TT^T 7. 8. the person of th postmortem report ^ deceased and proved the of Ex.P/16, whereinhe has found one antemoftem incised wound of size 2 l/2??xlMx bone deep on the posterior part of her neck, cutting of ap structures up to bone, 1st cervical vertebra ai^d underlying spinal cord, and llhat cause of death was neurogenic shock, homicidal further opined haemorrhagic and death of deceased ^ Conviction of thel evidence of PW-J eyewitness of the ir\ Learned counsel fd [aramato Bai is established. appellant is based on the ^ Pawan Sai, who is an icident. |r the appellant submits that there is an unexp^ained delay of more than 16 hours in lodging llhe report, though the police station is only at ^. distance of y2 km from the place of incident. Ipe further argues that genesis of the offence h^.s been suppressed by the prosecution as thejfact that there was a quarrel between the appelldnt and Pawan Sai (PW-2), who were in an inebjriated condition, has been suppressed, and th b Court below has also ignored —78 3Tit^i ^T F^ii^ ?I^T ^H^?l st^^ieh ^ ^t- €4. '3^ ^l<ll<rs^ ^Ttlwj<o, fa^W^ WN<W»»*tl^> ••^2C^ ^t ^^^ t T^T^si^l^ ^<tiW^f^^I^T & the evidence in par of this witness, wh^rein he has admitted that the appellant in his s^lf defence assaulted him by axe, however, the s|ame hit Karamato Bai and all this happened und^r the influence of liquor. He further submits thal allegation that the animosity with th^ incident took placel liquor in the mail contended that the ti?Rt;T ^RTH'rif "^ fe^ '^R5^ "^ 3??RR 3??^T ^.graph-5 of cross-examination t the incident occurred due to sudden provocatio^i, on the spur of moment, without any preijieditation as there is no appellant had any quarrel or deceased in the past. The while the appellant, his wife and Pawan Sai ai^d his wife after consuming ket were returning to their Village-Raghuvirpui- on way. It is further appellant gave only single axe blow to the deceas^d, there was no intention on the part of the apppllant to cause her death; and even the knowledge that by assaulting the deceased with axej once, would result in her instantaneous deaf:h, cannot be attributed to him. In fact, the bl(pw was intended tobe given to Pawan Sai and ^ccidentally, it fell on the deceased. 1 r4»^»tfe«a>^>.^«wg»^-^< XI-HC—78 ^I^T '3RT l^rN? Tl^fT WCT $i-»*f?<^ ^- (-, ~5^f'^TPTT^PT; ^•rtl.H<|^ T^^tl^y *SS<-l?ff ^»H(<tt •^200 ^TT^^F (^3({<|<s^) ^^W^N^IT^I 9. On the other hand, supporting the im^) the version given corroborated from (Ex.P/1), as the infj< deposed before th( informed him thatl wife. Referring t4 Karan and the posl that the appellant injurles over vitajl deceased i.e. neclt which resulted in thus, the Court under Section 302 10. We have heard le and perused the 11. <^3^{^<Ai ^^^fT^ fe%1r <l^i^!<. ^^t^T^T?^r learned counsel for the State >ugned judgnient argued that |3y Pawan Sai (PW-2) is duly [the First Information Report jormant Bachchalal (PW-1) has trial Court that Pawan Sai the appellant assaulted his the evidence of Dr. Ashish Lmortem report, it was argued intentionally caused grievous part of the body of the with a deadly weapon-axe, jher instantaneous death, and has rightly convicted him bf the IPC. bdlow irned counsel for the parties jmaterial available on record, including the impu^ned judgment. Conviction of the the evidence of of the incident. H4 incident, he along jappellant is mainly based on Paivan Sai (PW-2), an eyewitness has stated that on the date of iwith his wife Sukwaro Bai had —78 Tosr ^i^Krs^ ^Ttl^^i^ T®Kyfr^^< <nw?uww«6 ^n^i ^T R'ii°h Ti^T oTT^i'^1?^' 1"^-'2Q^ ^!^??:'^?r."(•^rfy^^^' ^CTW life^ 3???^i % gone to Kudeli for met the appellant also proceeding to basket in the ma consumed liquor anjd while they were returning to their village, the Karamato Bai with she fell down on th< up the axe and fll examination, he h^ and after consum! quarrel between hij para-4 he has de^ picked up axe to Budhram also pick in the meanwhile, KJ However, in para-5| and stated that it i| ^NfeTsfrT "Rrt^ft °^'fe^ <Pn^R i^^TR^rw^T ,recovery of their wages, they ^nd his wife there, who were Kudeli to sell their bamboo rket of Kudeii. All of them ^.ppellant assaulted deceased ^xe over her neck, as a result, b ground and appellant picked bd from there. In the cross- }s admitted that on return to their Village-RaghLiJvirpur, they consumed liquor |ng liquor, there was some m and Budhram. However, in piied the suggestion that he assault Budhram, whereupon pd up axe in his defence and [aramato Bai came in between. he has taken asummersault s correct to say that Budhram in his self defencejgave him a blow by his axe, which hit his wif^ Karamato Bai and all this happened under th^ influence of liquor. EC—78 '75ET ^4|^|<»i^ ^^^l<o, 'N^FRT^ *ll*tCTt SSlHieit ^T^r'^T'^fN' ^^?T <3W?T sr<*iw ^. •^200 3:n^i 17^5F (^s®^^ 'F^HW^^ ^IT 5 ^Prf^^ilW^^f fe^1rfN^R ^3?Rm^?i 12. It is not the casei appellant had anyj 13. past. On the contr^ry, there is evidence that the appellant and hisj Kudeli market for s| incident occurred liquor after return| There is also evi! quarrel between ari the influence ofl contradictory evid^ deceased was hit of the prosecution that the quarrel with his wife in the wife had together gone to elling bamboo baskets and the Iwhen all of them consumed [ng their Village-Raghuvirpur. ^ence that there was some Ipellant and Pawan Sai under liquor. Though, there is |nce of this witness that the by axe accidentally while the appellant was tryi^ig to assault him in his self defence. The allega|:ion is that the appellant gave only single lethal ^low by axe over the neck of the deceased. I Thus, taking into circumstance, andj was no animosity deceased; the incjident premeditation as a between the appel] and only single bl^w cpnsideration the totality of the also considering that there between the appellant and the occurred without any result of some drunken brawl (ant, his wife and Pawan Sai was given by the appellant XI-HC—78 w^T^rf^^ ^^T 37i^?TW^W n ^fM-^fW^l^i-S «/ 'T^r ^TFn^FF, ^Tll-H^Ko, T^Krtl^i^ <fP<?W%$H(C?> •^200^ ^II^T'^^' (^t^^^) ^pfe^ i^TO^ff ^* r^^€\<f<^"R ^^PT^?l by axe, which re{ Karainato Bai, we ^ intention nor knowjledge appellant for comni Karamato Bai, and| appellant does not the IPC. 14. In the result, the setting aside convl Section 302 of thel offence punishablel IPC and sentenced in place of R.1000/- under Form perusal find that the appell &ulted in death of his wife Lre of the opinion that neither can be attributed to the titting murder of his own wife the offence committed by the |:ravel beyond Section 304-11 of ajppeal is partly allowed. While |ction of the appellant under IPC, he is held guilty for the under Section 304-11 of the |to undergo RI for seven years, imprisonment for life and fine of Se<j;tion 302 of the IPC. of the impugned judgment, we ant is in jail since26.12.2001 and as such, he hjas already undergone the jail sentence imposed upon him. Therefore, it is directed that the j appellant be set at liberty forthwith, if not re^uired in any other case.t Sd/- Dhirendra Mishra Judge Sd/- DUip Raosaheb Deshmukh Judge