TwT^TFTT^T, ^Tn<14i<o, f®l<vl>l'(-i^< C,^-^- l^o. ^lJ)|o\ Nl<4dl sb^lltb —••••-•"•"••••—"••••—•••"•••""•""—^^ 200 W^T X|5|^ ( <i^l^^ ) ^TT^T ^T fqii^ TTSH 'yn^T sh^Jch ^-- ^CTW^f^r^T^T APPELLANT RESPONDENT Vind Casl Pac| Thal -v| Statl Statl (Appeal under Sectid Divjsion Benchi Honib!e Shri L.C. Bhadoo & Hon'bie Shri Dhirendra SViishra. JJ 25-S-2007 Shri Hemant Kesharwani, cou Shri Akhll Mishra, Panel Lawy Ora! judgment dictated on Da/ L.C. Bhadoo. J. The accused/appeliant has pr{ of conviction and order of sentenct Additionai Sessions Judge, Bilaspurj he has been held guilty for commissi| 302 ofthe Indian Penal Code and se| & to pay a fine of Rs.1,000/-, to un< Rs.1,000/- and to undergo lmprisonn|ient respectiveiy and in default of payn^ undergo Imprisonment for six month^ cbl^f<n41rl TTH^f ^f^^i <fa^l< ^3TRR3T|^T d Kumar @ Amarnath, S/o Janakia!, :e Satnami, aged 20 years, R/o viilage ibahra, Chirdapara, Police Station catpur, District Bilaspur. srsus- 3 of Chhattisgarh, Though Poiice on Thakatpur, District Biiaspur. n374(2)oftheCr.P.C.) ^isei for the appellant. ^rfortheState. £?. ^ferred this appeal agalnst the judgment B dated 17-1-2001 passed by the VIth in Sessions Tria! No.238/2000 whereby bn of offence under Sections 449, 3S7 & ^tenced him to undergo R.i. for 10 years |ergo R.I. for 7 years & to pay a fine of for life & to pay a fine of Rs.1,000/-, [ent of fine under each head to further ^.^ff^ XI-HC—78 ^t?r ^T ^ich Tf^TT ^fT^T 9FRRR' -3-^j -ill'410*), y>TO^'!<o, |c|<4H^< C^<^< ^o. ^^-|o\ 'WT^T -g^qf^ ••—"-"-•---•••••"•"••-"•••••••••..•..^ 200 ^9T ^^R (4^^<^) ^^iTW^ra^ 2) The case of the prosecuti< lodged a report in Poiice Statior p.m, he retumed from his field, the house of Badri and saw that The accused was standing at th< his hand. Seeing this he went to but he was not at his resider Upsarpanch. On return; he carrl been murdered and the accuse^ House Officer, Pollce Station Tr (Ex.P/10). Merg intimation (Ex. Investigating Officer left for th( (Ex.P/2) to the Panchas, prepar< Raj Kumari. The Investlgating the place of occurrence under the piace of occurrence under Kumari was seized under Ex.P/Q Ex.P/7. Site plan (Ex.P/8) w^ The accused while in the Polj<i pursuance of that, a Tab!i was s{ gave a ietter of request (Ex.Fj^ examination of Sahil Kumari in Ths body of Raj Kumari ^Ajj Government Hospital, Thakatpji conducted postmortem and prej^; cause death was by shock du^ cni^t<n<flrf^i^<^f ^'fe^l' Tf^R^R '^^tRHT^IT^T )|n, in brief, is that on 27-3-2000 Punav Ram Thakatpur to the effect that at about 2.00 leard the cries of the wife of Badri, went to his wife Prlthvi & son Gorelal were present. gate of the house of Badri hoiding knlfe in |he house of Tlkaram, Sarpanch, tocaii him, lce, therefore, he cailed Mathura Prasad, je to. know that the daughter of Badri has ranaway. Receiving this report, Station |akatpur registered First Information Report p/11) was also given by Punav Ram. The scene of occurrence. After giving notice [d inquest (Ex.P/3) on the body of decsased ^fficer seized blood stained & plaln soi! from x.P/4. One broken t'm box was ssized from Ex.P/5. Broken lock of the house of Shail Fu!! pant of the accused was seized under is preparsd by the investigating Officer. ;e custody gave memorandum (Ex.P/1). !n 'ized under Ex.P/9. The Investigating Officer f12) to the Assistant Surgeon for medica! sspect of the injuries sustained on her neck. as sent for postmortem examination to jr vide Ex.P/13 where Dr. R.K. Agrav/al ared report (Ex.P/23). Doctor opined that the to excessive hemorrhage from injury No.1. .2^^..^. M XI-HC—78 jsn^r^r'f^inr WTT ^ti^l 5n*ii<=b ~3^ '^W\<ft^Q-^\W[<o, ^<^W^{ v.-'t C-s". ^. r^o. ^c^SI]6\ ^Mv[l *N|cb'"'" 3n^WT3RF ('<I?t^5|^y) 200 ?^IWHf??T3II^I under Ex.P/14 for examinationl body of Raj Kumari couid be articles were sent for medil iy.aboratory, Bilaspur, Trom whe?) 3) After compietion of invej ofjudicial Magistrate FirstCla^ the Court of Sesslons Judge, | Sessions Judge,Bilaspur, rece| <^i€<(<yi<i1i*iw<A*^fe^ ^R?R ^ 3?rRpT iFir^r The death was homicldal In natpre. Tabli In questlon v^as sent to the Doctor prosecution examlned 11 witn^ under Section 313 of the Codel Doctor opined that the injury found on the ^aused by Tabii In questlon. The recovered bal examination to the Forensic Science |e the report (Ex.P/21) was recelved. ^tlgation, charge sheet was filed In the Court [s, Bilaspur, who in turn commltted the case to iBilaspur, from where iearned VI Additionai Ived the same on transfer for tria!, s 4) in order to establlsh th|e charge against the accused/appellant, the sses. Statement ofthe accused was recorded of Criminal Procedure in whlch he denied the material appearing against him|in the prosecution evidence. 5) Learned Addltional Se respective parties, convicted aforementioned. ssions Judge after hearsng counsel for the and .sentenced the accused/appellant as 6) We have heard ieamedjcounsel for both the partles. 7) Shri Kesharwanl, learn^d counsei for the accused/appeliant, has not disputed the homicldal death Doctor has not been examin |)f Raj Kumari. Even counse! for the accused has admitted fhe postmortenji report before the tria! Court; therefore, the d. It has been mentloned In the report that death of Raj Kumari was homjcidal in nature. 8) Shai! Kumari (PW-4) hjas stated that on the fatefui day at about 2.00 p.m. after Socking the room arjd providing food to her five years daughter, she :y^^... XI-HC—78 \" T^T •^1<410^, y>Tfi^l|(S, fsj^l^^ . C-Q-. A-N3o. ^^/t»\ TWRW ^wra? ....................................................y...^ ^^ 3ir^r xra^? (^F^cysy) 1 ^n^T?7r1^ri^ W^ ^^ sn+ilcti c,. ^wi^R ^a ^TI^T Jeft her in the parchi. When af the Jock of the room was brokefi bow! of the rice was Jying In t| room, the accased caught her holding the knife, on v^hfch she | Prlthvi came. Punav Ram (PW| accused was standing there. medical report in which the of the considered opinion that| nature. fler an hour she returned back, shs.sawthat i. Her daughter was not in the parchi, The |e parchi. When she tried to go inside the I'om neck andpushed her. The accused was |raised cries, hearing her cries Punav Ram & ^1) & Prithvl (PW-2) have aiso stated that the Therefore, in view ofthe above evidence and has mentioned about the Injuries, we are i the death of Raj Kumari was homicidal In dodtor 9) As far as involvement concemed, iearned counsel f<^ case, there is no evidence to Kumari, as no prosecution ^| attacking Raj Kumari. He furth^ accused was standing there. Tj the husband of Shai! Kumari been faiseiy implicatsd in the 10) On the other hand, Shri| supported the judgment oftria! 11) in order tb appreciate th| ofShali Kumari (PW-4), motheil 2.00 p.m. she left house after the parchi after providing heij ;retumed back, her daughter w^ ^jn'R^f^fe^ <f<i^i< ^^iRiH^Rn^T ^f the accused In the crime in question is the accused/appeliant argued that In thls t;onnect the accused wlth the murder of Raj Itnesses, in fact, saw the accused while r argued that they have slmply stated that the icre was anlmosity between the accused and ^mother of the deceased), the accused has in question. crlme iMishra, learned Pane! Lav^yer for the State, ^ourt. arguments, we have perused the evldence of the deceased, she has statsd that at about ocking the room and ieaving her daughter in rice in the bowi, when after an hour she not in the parchl whereas, the rice bowl was XI-HC—78 ^^ ^iWW^, ^TH'yjl<o, fs|<r!i|-y^<: •<^ Cy-^'^o' M^/of ^l^dl sb^l 1cb •"""•—""—•••"•—"—•——-/—"^ 200 an^r x[3^ (4?<^<^) 31T^T^^[ch $b^i<=h '^nw^f^T 3?n^r jying there and the accused was| was broken, when she tried to from the neck and pushed her. Ram (PW-1) & Prithvi (PW-2) c^i the lock oftin box and took out h^ has mortgaged this house further saying that it is his housel the room. When accused ran av4 daughter v^as lying dead in. the| injuries. standing at the gate. The Ipckof the room ^o inside the room, the accused caught her "hereafter she raised cries, on which Punav c^me on the scene. The accused broke open c^sh amount of Rs.264/-. He was saying that ft?r a consideration of Rs.13,000/-. He was therefore, he wii! not a!!ow her to go inslde |ay, she entered the house and saw that her room and biood was oozing out from the 12) Punav Ram (PW-1) has the extent that after returning time he heard the cries ofthe w| house of Badri, he saw that standing at the gate, thereafter h{ he was not at his resldence, Ramavatar. By that time, the theft. When they reached they| Injuries on her neck. He (PW-2), wife of Punav Ram, Kumari (PW-4). Punav Ram is incorrect to say that he Is jir| accused Is his grandson, therefo} faise case. Mani Bai (PW-3) h^ Shail Kumari and saw that the with Shaii Kumari & Prithvi was lodg^d h|is (P\|V- cM<if<yi<Di *iw<!if^ffe^ <n»i^i< ^5'3TRW3R^T Nm accilised dorroborated the evidence of this witness to the fieid he was taking his meai, at that |fe of Badri, therefore, he went towards the was coming out of the house and was i^ went to inform the rnatter to Sarpanch, but th^refore, he brought Up-sarpanch & Kotwar ajccused aiready ran away after committing saw Raj Kumari in the house, there v^ere the report in the Poiice Station. Prithvi a!so corroborated the evidence of Shaii P\|V-1), in cross-examinatlon, has stated that it jiTlpjicating the accused in a faise case. The j-e, there is no questjon of his implication in a i^s also sfated that she went to the house of ^ccused broke open the tln box, she aiong ^tanding towards her house. The courtyard .'y^^'-:- 6 XI-HC—78 ^T^T?FT^i<=h WT 3?H^T $n+ijct) c 1 L' ;te-.- <$-c^ T<fN10^, y>T{1<111<S, fsf<r!>|-y^< C^.^po. ^^JQ\ *IIICTI ^Tfl^ •••••—•—"•——•—"""-—""."..y...^ ^QQ w^r ^^K (^&^^) '5^iTW^f??T 3?n^r of her house and Shaii Kuma moneyfromthe box. <yicif<n<fl»t *<w<A ^fe^ '^rf^R^FC ^ ^FiRpr iFn^r i was common. The accu'sed took out the 13) From the evidence of aj! these four witnesses, the prese,nce of the accused on the scene of occur|rence is estabiished. The house vvas locked fcy Shaii Kumari when she ieft ^he house. When she returned after an hour, she saw that the lock vvas br< daughter was not in the parchi from the box. Moreover, the ac go inside the room, the house |ken, accused was standing at the gate, her , accused broke open the box & took money ^used was saying that he wi!i not a!Io\¥her to be!ongs to hlm. He has mortgagedithe same for a consideration of Rs.13|000/-. The weapon of offence (Tabli) was recovered at the instance of th^ accused from the house of Badri. As per the FSL report, the blood was four on the full pant of the acci^sed. The accused has simpiy denied the prosecution evidence and has the crime in question on acco| behalf of the accused that ho^| murdered and he has not e)| Kumari sustained the fatai inj{ d on the weapon of offence (Tabli) as weii as stated that he has been falseiy ImpliGated in pnt of animosity. There is no expianation on ^/ he was prssent there, how Raj Kumari was piained the circumstances under which Raj jries. Moreover, Punav Ram (PW-1), who is grand-father of the accused {ias stated that being grand-son there is no question of faise jmplication ofjthe accused that too in a murder case. When accused v^as present there, jas per the provisions of Section 106 of the Evidence Act, the burden wa^ under which the lock of the h(j) Kumari and the box was broM on theaccused to explain the circumstances ^use was broken, the injuries sustained by Raj je open by him, therefore, this is an additiona! circumstance against the acci|s@d. AIi these clrcumstantial evidence and the conduct of the accused estabjsh the InvoSvement of the accused in the crime XI-9C—78 ^ff^T^T'f^n^ T[^T 3TI^T 9h^lch t L^ h« 3^€T^l^l^, ^rH^'Ko, [s|01^^,< . ^\^&IQ <^<<^. N?^k ^\^^\ •w^n- ^qN? ••"•••"-•••••""••-••••"•••-••••""•••••—^ 200 3ff^T TTO^ (^^<8T) '^RiTW^lft^ ^TT^T in question because when Shail was in the parchi, house was lockec? that time the accused was standij Kumari was murdered inside tB circumstantiai evidence, it is estabi) crime in question and there is no the crime because committing the t^ the witnesses, therefore, the the Indian Pena! Code for committij lega! evidence and we do not find the triai Court to that extent. Ku|7iari ieft the house, deceased Raj Kumari and she returned back within an hour, at ig there, lock was broke open and Raj ie room. Therefore, from the above Ished that accused was the author of the riossibility of any other person committlng left and breaking of the box was seen by of the accused under Section 302 of ig the rnurder of Raj Kumari is based on ^ny iliegality or infirmity in the judgment of convitflson 14) As far as the conviction unde| concemed, the accused trespassed the lock and committed the murder under Section 449 of the Indian Pei not require any interference by this 15) As far as the conviction undej' concerned, Section 397 of the IR( prescribes the minimum sentence w committing robbery or dacoity, uses| hurt to any person, or atlempts t<| person, in that circumstances the a|; than 7 years. The accused has| imprisonment for life for committingl 4»l^(fd<lfl^'WR^ff ^,1^1 <^i^< ^7 afRp?'3?lt?T Section 449 of the Indian Penal Code is the house of Shail Kumari after breaking of Raj Kumari, therefore, his conviction lal Code is also established, which does pourt. Section 397 of the Indian Penal Code is p js not a substantive offence, but it |hich envisages that if any accused whiie |any deadly weapon, or causes grievous cause death or grievous hurt to any i^cused is iiable to be punished not less already been sentenced to undergo loffence under Section 302 ofthe indian F" Xl-yc—78 3TT^T ^T ^Jcn TT^T ^R^T sfr»*4|ch /f'-_ 3^£T^l^l^q, ?$TQy<|<S, |sj01-H^< TTP^iT d»^|ch <^-c.^. ^o- ^^JQ\ "f"^ 200 3^?T''T^W ( ^f^q^T) '^TTW^rfiH^T^T C^P5. Penal Code, therefore, the convictil Code is not sustainable. 16) In view of the above, the ay The conviction and sentence impo; of the Indian Penal Code are set however, his conviction and senten< Penal Code are maintained. Sd/- L.C. Bhadoo Judge cni^f<n<fl<i ^H<nl ^fe^ <F^<^K "^ 3fl?m 3TI^T 3n under Section 397 of the Indian Pena! ^peal of the appellant is partly succeeds. ^ed upon theaccused under Section 397 ^side and he is acquitted of that charge, ij;e under Sections 449 & 302 ofthe indian Sd/- Dhirendra Mishra Judge n