IN IHIIHIHIHIII!“WIN J ' WNW” ‘ 4" / mi) ~ C; ~21M9 6 38 I Qpxx’ APPEAL OF PRHSONERD Na’ Lga LI Name ’ w [d I Famets name g g a gs 7x? RmwmeW WW wmmmw 2. g3 lggn ' I f t ’ » ¢ ( x ‘ ‘ \ ‘ \ ‘ w sum mm £x£min§§f§ Unmmamm Egg QWWWQEW “EH—KW Mm ‘ by lega! unkss I? w, eXphmmdL m my muswncr that 1f he states m Wishes m be repxesen ammw we Agpeiwte (3mm Wm mm macw mm the base fog new u u g mmmcmear appears [Mime aega! practmamer does mot app my mat heard at a“ if we pmsoner states that he dws m mad by Regai pmmtmmer me courk may pmcsed at once With be obingw m gave a heamng m any legal piactztaone: who sho 1 Dam 0i? Amyiication far: mpy of hMgemem‘L 2 ‘3 3 2' 'mmwwmchmwwww ‘ ~29 ‘1 19km, $ ‘ D3ié «m which Amywi smt J. g L‘59C‘ 0’ whemmr the mzwmer washes w bv repwgemmi a; mea‘ Yes V Nu gmgmrvkppemmW ’ Smperimande?m wk, agrg stal ’:. , 2; U. e of ncexm m Appellaie Court q‘ M \ 9; g ' ”W t . , W ~~ a s ” o I a, nu}. u é) V 4 . i Dam of mam m C. l M s 0mm A Dam of mmpt u‘emr& m aoceampany o€ Mmwjvof the Appehaxe comm; / / Mama NO ' Dated / ' E98 Fmmrxhtk E9 mt ‘ L§K”; 3Y0 \’€ W3 k, HIGH COURT OF CHHATTISGARH : BILASPUR Criminal Appeal No.1005 of 1990 APPELLANTS: 1. Moti, S/o Ramawatar, éged 25 years, Cultivator, Rfo V' €— Lurena, P. S. Kamleshwarpur Distt. Surguja (MP) Pre§eni Address— District Jail-Ambikapur, Sarguja (now CG.) 2. Dubey, S/o Ramawatar, aged 21 years, Cultivator, R/o Village- Lurena, RS. Kamaleshwarpur, Distt. Surguja (M.P.) (now CG.) Present Address— Brostal Institute — Narsiugpur (MP) (now (CG) Versus RESPONDENT: State of Madhya Pradesh (110W Chhattisgarh) Present: ‘Shri R.K. Jain, counsel for the appellants. Shn' Ravindra Agrawal, Panel Lawyer for the State] respondent. Division Bench: Hon’ble Shri Dhixendra Mishra as Hon’ble shri Manindra Mohan Shrivastava, JJ. J U D G M E N T (Delivered on 5th January, 20 10) The following judgment of the Court was delivered by hirendra Mishra, J. 1. This criminal appeal is directed against the judgment of conviction and ., order of sentence dated 29th March, 1990 passed in Ss’l‘. No.194] 1988, whereby the learned Sessions Judge, Ambikapur, after holding the appellants guilty under Section 302 read wim Section 34 of the IPC, “an. \.\ D , [fir sentenced them to undergo life imprisonment for causing homicidai death of the deceased- Kuntibai. 2. Briefly stated case of the prosecution is that Samudra Yadav, brother of Bharos (P.W.2) a11d 'Moharlal (P.W.4) ami son of deceased Kuntibai was murdered. It is said that the accused persons were facing trial of that murder. On or about 12th June, 1988 at about 7:00 p.m., Moharlal had 9 seen these accused persons nearby his house. Thereafter, in The house he had instructed his brother—Bharos, sisters’ son Bal Bhagwan to be careful as the killers have come. On hearing this, his mother Smt. Kuntibai went out of the house and abused. the accused persons. At that time, the $c accused persons caught hold of Kuntibai, put her down and belaboured/ %. her. The aforesaid incident was wimessed by Bharos (P.W.2), Moharlal (P.W.4) 8:. Bal Bhagwan (P;W.5), who reached there on hearing the cries of the deceased. Bharos (P.W.2) gave First Information Report in the police station on 13.6.1988 at 8:30 am. narrating the aforesaid facts vide Ex.P- 10 A, whereupon offence was registered under Section 302 read with Section 34 of the IPC. After registering the offence police proceeded for scene of occurrence. Inquest over dead body of the deceased was prepared vide EXP—8. Thereafter the dead body was sent for autopsy to Primary Health Center, Sitapur Vide EXP-5‘, where Dr. I. D. Gupta (P.W.7) conducted postmortem and gave his report vide EXP-6. 3. After completing investigation, charge sheet was filed against both the appellants under Section 302 read with Section 34 of the IPC in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the case to a the Court of Sessions Judge for trial. 4. The learned trial Court framed charge under Section 302 read with Section 34 of theIPC against both the appellants, who abjured their guilt. . During triai, the prosecution examined 11 witnessas in all. Theraafter, statements of the accused under Section 313 of the Cr‘P.C were recorded. The appellants denied the circumstances appearing agéjnst them in the prosecution case and pleaded innocence. In reply to question No.25, they also stated that Bhams &, Moharlal had gone to beat Dubey in his house armed with club and beat him. When Moharlal was assaulting Dubey, Kuntibai, mother of Bhams 65 Moharlal came there and intervened, and at that juncture Moharlal pressed the neck of Kuntibai and pushed her, as a result, she fell on the ground and she sustained injuries. They further stated that they have been falsely implicated in the said odence. They also examined Chintamani (D.W.1) and Raghubir (D.W.2) in support of their defence. The trial Court after hearing learned counsel for the respective parties convicted the appellants as mentioned in para—1 of the judgment. 6. Learned counsel for the appellants vehemently argued that the trial Court was not justified in relying upon the evidence of alleged eyewitnesses namely Bharos (P.W.2), Moharlal (P.W.4) 8a Bal Bhagwan {P.W.5) and l committed an error by rejecting the defence of the appellants. He further argued that the incident occurred on the spur of moment due to sudden quarrel between the eyewitnesses and the appellants, and the oEence does not travel beyond Section 304 Part-I or Part—II of the IPC. 7. On the other hand, learned counsel for the State/respondent has supported the impugned judgment. 8. We have heard learned counsel for the parties. We have perused the record of the Sessions Trial including the impugned judgment. a 9. Homicidal death of the deceased Kuntibai is not in dispute. Even otherwise the learned trial Court referring to the evidence of Dr. LD. Gupta (P.W.7) / “\t ‘\“-\re u\s\ (4? who has conducted postmortem and proved his report of EXP-6 and has opined that the daceascd sustained injuries on her neck on account of strangulation and the cause of death was asphyxia due to throttling, rightly held that Kuniibai died homicidal death. 10. The learned trial Court has convicted the aypellants on the basis of evidence of eyewitnesses Bhaxos (P.W.2), Moharlal (P.W-4) 85 Bal Bhagwan (P.W.5). Bharos (RWQ) in his deposition has stated that on the date and , time of the incident, he was dining with Bal Bhagwan in his house. At that time, his brother Moharlal cautioned him that the appellants have come‘ Hean'ng this, his mother deceased— Kuntibai went outside the house abusing the appellants They also came out and saw that the accused persons were beating the deceased with hands and fists over her neck, chest and abdomen. Thereafter, they ran away from the place of incident. The deceased was in unconscious condition. They brought her back in the house, however, she died. He has been cross—examined at length by the defence counsel, however, he stuck to his version in the examination—in- chief and the defence could not elicit anything in his cross—examination which makes his version unreliable or doubtful. Simiiar is the evidence of Moharlal (P.W.4) and B31 Bhagwan (P.W.5), who have also witnessed the incident. Their version is duly corroborated from medical evidence, as the deceased had also sustained the conesponding injuries over her person. Their version is further corroborated horn the First Information Report which was lodged by Bharos (P.W.2). The trial Court after elaborately o dealing with the evidence of the aforesaid eyewitnesses has found their version ‘to be reliable and trustworthv. s 1 1. The defence of the appellants that the neck was in fact pressed by Moharlal has also been considered in para—17 onwards and after elaborately GE discussing thé evidence of defance Witnesses Chintamani (D.W.1) and Raghubir (P.W.2), it has baen held that version of the defence witnesses iS not reliable, as they have stated altogether a different fact and their version is also not cowoborated from the evidence of Dr. Surendra Bhargav (P.W.6), who had examined the appellant—Dubey and opined that he had sustained only contusion over right side of the head, Whereas Chintamani (DW. 1) has , claimed that blood was oozing hom his head. V‘ r‘\k . So far as the' argument that the incident occurred due to sudden provocation on the spur of moment, without premeditation and, therefore, the same does not fall bevond Section 304 Part—I or Part-I] of the LRC. is concerned, the manner in Which two persons pounced upon a lady and ’ caused injuries over her person and thereafter throttled her resulu'ng in her instantaneous death, we are of the opinion that the trial Court has rightly held that the appellants assaulted the deceased with an intention to cause her death. The trial Court on due appreciation of the evidence available on record has rightly convicted the appellants under Section 302 read with Section 34 of the I.P.C. and sentenced them to life imprisonment. There is no illegality, infirmity or jurisdictional error committed by the Oourt below warranting interference in the impugned judgment. iwv d? liNd nha \l 13. in the result, the appeal is Without any substance; the same deserves to be dismissed and is accordingly dismissed. Sd-/~ ““\ Wt \Manindra Mohan Shrivastavas ‘v v:-:$\ r’ W" (e e' r ~i Ly a\\\‘&~\f"‘”"-~‘~ SdF mmmNDnA MIsHRAv / 7 Judge‘ J/ Judge / ,\