^T^fT^ f<Tli<=h ^T^n 'STI^T ^qNr T^T ^I'MI^^, ^Tn'y^KS, [s<<7')|'M^< ^Hdl sb^lch "^ 200 3n^?r 'q^? (4G(fl<s<<^) '^TTW^rft^ 3^T^T mGHCOURTOF cfr)l<<{<n4r1 TTP:I^f ^'fecSt ^^K '^^tRma^n^T CHHATTISGARH BILASPUR CRIMIHAL Al*PEAL N0. 51 OF 2003 DIVI8ION BENCH APPELLANT HOdr. 8HRI L.C. BHADOO, 8& HOIlT. 8HRI DHIRENDRA MI8HRA. JJ RESPQNDEHT Ghansi Ram. S/o Maiu Ram, aged about 36 years, R/o. ViUage ~ UUdya (Dai'gapara) P.8. Sitapur, District-Sarguja (Chliattisgarh) Versus State of Chhattisgarh, Through D.M.-Sargiija (C.G.) Present Mr. Vmeet Paad Mr. Sudhir Bajy ^y, counsel for the accused/ appeUan.t. |ai, P.L. for the State/respondent. ORAU JUDGM EHT (4lh July 2007) Per L<C, Bhadoo* J Learned counsel for 1{he accused/appeUant com.nieaced his argumeiit on IA.No. 1, appl|lcation for suspension of sentence aad grant of baU. This is thie tj^rd ball appUcation on behalf of the accused/ appeUaat. XI-SC—78 :3:^T^TraT^T, ^>TQ'M41<o, (cf<y'>l-M^< Nl^ldl *^llck ^ 200 ^TT^T ^T f<Tli<=h ^T^T ^f^ 5h+lich 3?T^?T X^TSF (^t^^) '^TTW^f^T 3>?1^T 2. Learned counsel for since the accused is in tiiis appeal m.ay be heard State has no objection. the appeal is heard finatly. jthe accused/appdlant submitted fhat dete|ition for about 5 years and 11 nionths, ^naUy, to which learned counsel for fhe Th^reforCy with the conseat of thc parties, directbd dajted 3. This appeal is and order of seatence Additional Sessions Judg^, 380/ 2001 whei-eby learn^ holdiag the accused/appeU^nt under Section 302 of tiie undergo imprisonm.ent for| default of paymeat of j&ae tc^ tbat 4. Case of the prosecuti|oi at about 6.00 p.ni. whea th|( towards the vicinity, accus^d him. He told Noharsai Narayan. He was carr^drLgl he said that let us go to th| accused on his bicvcle to fhat dead body of Narayan was a cut injury on his ne<| aad Ved Prakash were alsoj <=bi<Lit<rt4l 'W:I?Tf ^fe^t <Fai<^l< ^^tRw^T^T agaiast fhc judgmeat of conviction 28th October 2002 passed by II ^ Am.bikapur ni Sessions Trial No. ^d Additional Sessions Judge after guUty for comiaission of the offence hidiart Pcnal Code, seatenced him to life, pay a fiiie of Rs.100/- and ia fiuirther undergo R.I. for one year. on, ia brief, is that on 3rd August 2001 e vUlage Chowkidar Noharsai was going Ghasi niet him cn the way and catled he has coxnmitted the m.urder of spade [Fawda) staiaed with blood aiid s poUce station. Therefore, he took the tlie place of occurreace where he saw ivas lyuig m. I^S^pool of blood aad fhere ^k. At that tmie village Kotwrar Balam with him. Thereafter, they weat to the Xt-HC—78 3^cT "Ml^t^^l, ^>rfl+14i<o, |st(?'>l<-l^< ^Wv\{ sh^lch -^ 200 ^TT^T ^T R-lich '^8?T 3>TT^T $h^|cb 3TT^?T ^^ (4?lf^<^) '^TTW^f^T 3?1^T poUce statlon aiid lodged First Information Report House OfiScer, P.8. Sitapuj Section 302 of the IPC. of occurreace and after prepared the inquest (Ex.P Site plan (Ex.P/ 6) of the body of Narayan was sent Healfh CeatCT, Sitapur postraortem and prepared he opiaed that death. of mjury on fhe neck aiid Weapon of offence spade accused under Ex.P/11. sheet was filed agamst Judicial Magistrate Fu'st the case to the Court of learned II Additional for ti'ial. M|=rg (^x. Thle g^vmg pjjace t|rjr wyere fbe Najrayaii AjftCT tl^e Clfciss, Sessiottis 5. Prosecution ia ordat accused examuied 15 recorded under Secti.cn 31$ material appearhig agaia| cfr)l^lf<yl^1T1 'HPT^f "^\fe^rt <P»l'^l< '^'^ffOT^rT^r uittmation (Ex.P/ 4). Based 011 tliat [.P/3) was registered by fhe Station for cominission of fhe offence under mvestigatmg officer left for the sceiie notice (Ex.P/ 1) to the Panchas, V2) on the body of deceased Nai'ayan. of occurren.ee was prepared. Dead postmorteai exam.in.ation to Prmiary Dr. M. Nikunj (PW-12) conducted posttnortem. report (Ex.P/9) inwhich was due to shock, as a result of Itiie deafh was hoinicidal in iiature. J7as sdzed from. the possession of fhc corapletion of investigation charge accused/appeUaat m the Court of >, Ambikapur, who ia turn comiaitted Sjessions Judge, Ambikapur froia whcre Judge, recdved the case on transfer to establish the chai'ge agaiiist tlie witdesses. Statenient of the accused was of the Cr.P.C. in which he demed the ^t hioi m fhe prosecution evidence, XI-dC—78 ^uSf ^<|A)|0^, ^Tfl+1<l^, lc)<^l^^< f^ ^IT^T ?FT R'lich TT^TT 'STT^T $^^Ict> ^Hdl sb^lcb ^ 200 3TT^?T T^T^ ( 4<!<^<^) '^TTW^f^T 371^1 pleaded ianocence aad statjed that he has been falsely implicated ui the criiae. Sefssions 6. Learued Adclitional fhe respective parties accused/ appetlant as aforectienttoned 7. We have heard Mr. behalf of the accused/ appet| State/ respondent. 8. Mr. Paadey, has not The above evideiice is corrol <^i^(<r<<flrl ^l^^ '^.fe^t iPfl^K '^'stRm^TT^T Judge, after hearing counsel for convicted aad sentenced fhe ^ineet Pmideyy counsel appearuig on \ant aad Mr. Sudhdr Bajpai, P.L. for tlie |disputed honiicidal deafh of Nai'ayaa. Moreover, PW-1 Naiharsai L|ohai' aiid PW-2 Madhusai Kanwar have stated that the accused atjbacked deceased Narayan with spade. borated by the m.edieal evldence of Dr. M.Nikunj (PW-12) who co^iducted postmortem on tlie body of deceased Nai'ayan and stal^d fhat fhere was a cut iajury on fhe neck of the deceased, deat]|i was due to haetnorrhage and shock, as a result of neck iajzi^ Therefore, in view of abo^l 'y and it was homicidal ui nature. rc oculai' and m-edical evidence it is estabUshed that death of N^rayan was hoinicidal ia nature. 9. Learned counsel for ^he accused/appellant argued fhat the accused came on the scendI11 offence, at that time dec^ased Narayaa also came there m a drunken condition, abused of occurrence withput aiiy weapon of the accused and said fhat he wiU. kUl X3-HC—78 3^T^Tpn^T, ^xn'y'ic, ist^wy NINdl 5bNI<*) "^ 200 'sn^r ^r f<-ii<=h '<T^TT ^TI^T 5b^lich 3^?r ^s^ (^?^^) ^^T^-^f^r ,sn^r him., on which the accusecl without aiiy prcmeditation] which was lyiag on the spo1 fhe offence agaiast fhe ac< 304-11 ofthe IPC. 10. On tlie otiier hand, T^-, supported thejudgment oft|ie t|ie 11. hi order to appreciat^ parties, we have scrutinized| 1 Naiharsai has stated th.at and Madhu was sittmg by also caaic there. At fhat tiid< with spade, as a result of "v( and died spontaiieously. above eviddice of PW-1 fateful day at about 6.00 p.] and Nalharsai was sitting occurretice), Ghasiraai andj Ghasiram attacked NaravadL sustained cut injury on| spontaaeously. la the crosj that it is correct fhat therd Ghastram aad deceased <=frit^t<n<i1Ti *i\H^\\^k^ <fa'^i< '^'sTRFT^n^r ia a heat of passion aU of a sudden. or preparation picked up the spade aiid attacked the deceased, therefore, :used does not travel beyond Section . Bajpai, learned counsel for the State trial Court. tlie arguitieate advaaced by both flie Ithe evldence available on record. PW- m thc fatefiil day he along wifh Mannu side ofthe roady Ghasi aad Narayan die accused Ghasi attacked Narayan ^hich he sustaiaed iajury on his neck PW-2 Madhu has also corroborated the NAdiharsai. He has stated that on fhe i. in fhe eveniag he along wifh Marrau on fhe Nohapasra (i.e. fhe place of Narayaii were also preseat there and with spade, as a result of which he his neck, fell down aad died ^-exainiaation tihis witoess has stated was a laad dispute betw^een accused Narjayan. The father of accused Ghasirara Pty- di. XI-HC—78 ^^ ^WW^, ^W\<£,,^\<ftW^ ^INdl skNlcb -^ 200 ^n^i ^r f^rii<=h ^iT S^ 5h^i<=h 3TRt?T ^51^ (^f^<^T) '^TTW^rf^T 3?T^T ^ artnless N^urayaa sp^de purchased the land froni Narayaii was claim.iag pos| fiirther stated ia his cross-j druiikea condition aiid saidl Ghasi and Narayan wei'e kUl Ghasiram. Wlien Ghasii'am. picked up the deceased. He has further st wiU kiU Ghasiram, thereforel deceased with spade whichj stated that whea the accust fhe spade belongs to hhn, ^ up by the accused Ghasirajm evideiice of Madhu (PW-2) sj on the spot wifhout any ar4i; to tlus witaess, Narayaii als|< druiiken condition and saicl also he used to sav that h4 claimiag possession over ti^ of Ghasiram. froui tiie fath^r circunistances, froni fhe pr^ record fhat fhe accused w^ without any premeditation heat of passion when fhej cbi^(<rt^1l Hl^<?IT ^fe^ <fa<^i< ^? 3Tf?FT 3T[^[ the father of deceased Naravaa aad session OVCT the said laad. He has exam.ination tiiat Narayaii caoie in a that he wiU attacked Ghasirani. Botli », Narayan was sayiag tiiat he will advaiiced towards Ghasiram., lymg on th-e spot and attacked tiie .ated tiiat Narayan used to say fhat he Ghasiram on fhe fatefLil attacked the was lyiiig on tiie spot. He has also sd came on tiie spot, he was armless, hich was lying on fhe spot and picked to attack fhe deeeased. The above iiows that the accused Ghasiram came L, tiie weapon of olBfence spade belongs o caine on the place of occurrence in a that he wUl attack Ghasiraoi, earUer witl attack Ghasiram. because he was e laad wliich was purchased by father of Narayaa. Therefore, in fhe givea secution evideace itselfit has come on LS preseat on fhe scene of occurrence >r preparation aiid aU of a sudden ui a deceased advanced towards himi to XI-HC—78 3Ti^T ^T ^ich ^^T <3TT^T $ti^icb ^AA^ 3^ET ^I'MI^, ^TQ^^l^, {ef^iy^< ^ ^Wv{\ *N(cb •^. 200 3T!^?T'<?5(^ (^Fyi^eT) '^FTW^rf^T^TT^r attack, he picked up the s the deceased. Therefore, covered under Exception 4 his conviction under Sectioj 12. In the result, fhe ap] accused/appeUaat under imposed under fhat sectio: convicted under Section undergo seven years9 R.L deteation since 5.8.2001 for the set off of fhe above miposed upon hiin. >ade lying on fhe ground aad attacked pie case of the preseat appeUaat is |of Section 300 of fhe IPC aiid as such, 302 ofthe IPC, camiot be sustained. )eal partiy succeeds. Conviction of fhe Pection 302 of fhe IPC aad senteiice are set aside. Instead thereof, he is (304-II of the IPC and senteaced to It is stated that fhe accused is ia tipl today, therefore, he shaU be entiUed [detention period agahist the sentenced Sd/- L.C, Bhadoo Judge <t»i^(<rt<i1i"HR^f ^f^ei' <Rn^i< '^^tRm^Ti^r Sd/- Dhirendra Mishra Judge