^^^^^^^^^^^^^^^^s^^s^®^ ,^i'y-. ^•v^.' CF0000063183 liw 're8_Hia L.'^N^?"-' ..:-<S44:-' W OTBEe^FmB.AT.^'^&'w ^.yzi- eriBitnal Appeal MbB! _ In Jail 1.11-3-K ff-3ut^A^- Versas -T^ S^T2fto8i 11; BMer Seetion 147, 1AQ, »307, 5@2, 908, ,i49.of Bipyeg •'-. Caart ®f- Hon*'ble anlF? •AKQ^dfaa'KhaPet Baloda Bazar, Ralpw (M.P.} MSi1»,^1*' 3?4^<2l 0S"fip®t'g| Bhialal, S/o aiiuiHa.aa. Sen, Aged aboat 36 yeai?s, . 8/e ®nam~'Ehe^S.,'f!i,if.^slsra., Msttif- Ratpur («.»»-)Ctil-f 'S'ha State 6f iSPS!:^.^.:,^ 1 Birou^i^ Pi?a? PalarC,l::-aistt11-' Ralpur (M^s,) c-^ftt-f a* i:ii:,l ll' XI-HC-78 *11«TcfTaiW^ 3^' •<41<ll<fll, OTnw'IS, IqcllUy _ c^.ft. ^ 200 Sll^l >4acn ('i,':l(3°l<<<T) 3Ti^r^rR-fi4i TOTSfWlshllti STtTraT^cT-W^T Division Bench: - Hon'ble Mr. L.C. Bhodoo, Ag.C.J. bnd Hwible Mr. Sunil Kunar Sinha, J. 5-2-2007 wjicy Mr. Rajesh Jain, Advocat^,' counsei for the appellant. AAr. Sudhir Bcypai, Deputy Go^ Mr. Rqjesh Jain submits tho^ Jain, Advocate, as she is in family to come to the Court for at least thtee has prepared the case and he is reac^y Jain is permitted to ar9ue the case c|n Oral judgment dictated.on Dd/s. Per L.C. Bhadoo, Aa.C.J.: - (ippears on behalf of Mrs. Kiran Jain, This appeai is directed agaf order of sentence dated 28-7-! Sessions Judge, Baloda Bazaar), whereby learned Additional accused/appeliant guilty for 302 & 324 of the I.P.C., sentenc|sd <t>i<if<']41-i tiiti(iT?'te^<R]t<i< «l;3Tf^T3l1^?T 't. Advocate for the State/raspondent. this matteris allotted to Mrs. Kiran therefore, it is not possible for her months. He further submits thct he to argue the case, as such, Mr. Rajesh behalf of Mrs. Kiran Jain. (nst the judgment of conviction and -^OOO passed by the 1st Additiona! in Sessions Trial No.115/2000, S^ssions Judge after holding the contmission of bffence under Sections him to undergo imprisonment for ife and pay a fine of Rs.1,000/^, in default of payment of fine to further undergo K.I. for one ^saj'ah<J to under90 R.I. forone month, respectively. It was directed ^hat both the sentences shall run P.T.O. XI-HC-78 *IIHC<11Sh*llch 3;Sg'.'<ll'l|l<'l<<,t!iT(1+l'l6, RlCll^y ..C^..A-.^/.... ^ 200o 3f 1^14a<*i ('i?i^c"<€l') sn^T^rR-fi'b cPIT 311^1 ShKi+ STtITW ;Hfel' 3n^5T ^iPlfcPfl^ WRTfif fecA (f^RZTC ^srf^tTSn^T concurrentty. Accused Kumari Ba was conyicted under Section 323 of the I.P.C. and she was directejJ to undergo RJ. for seven dcys. However, two accused persons nc^nely, Bhojram and Tijia Bai, brother and mot+ier of the accused/cppell^mt, respectivaly, were acquitted. /f. 1 TTie case of the prosecutio^, in brief, is that in the moming of 28-12-1999 some dispute took pl^ce between accused Bhimlal and his younger brother Dhaneshwar Pri^sad (since deceased) on the ground fnat Dhaneshwar Prasad deman^ed his share of paddy which was refused by the accused/appellant appellont along with his wife and In the evening, when the accused/ phildren was standing in the street, the accused attacked the deceas^d wi-tti an axe on his head, when wife of Dhaneshwar Prasad namely, Rai^ Kumari intervened, Kumari Bai wife of the accused, Tijia Bai mother the accused and Trilochan son of bf the accused, Bhojram brother of ,1+ie accused attacked the deceased, his wife Ram Kumari cnd dc^ughter Kavita sustained injuries. Dhoneshwar Prasad succumbed to^ the injuries sustained by him. The matter wns reported by Ram K^jmari under Dehati Nalishi Ex.P-1. Merg intimation given to Police S'(ation: Baloda Bazaar was registered at No.0/99 under Ex.P-24 on 28-1]12-1999. Thereafter, Police Station: Palari registered mer9 at seriol N^.50/99 under Ex.P-27 fftd based on that, F.I.R.s Exs.P-23 and P-26 ^ere rsgistered. The Investi9ating Officer left for the scene of oc A ^urrence and prepared the site plan P.T.O. .XI-HC-78 35? -^WWi{, ®T{1<H'I6,fslMIWy *11*1MI Sh*1ic»i (h.£\:^. ^ 200S 311^1 Ma«h(li?lid'sl<;llir) an^r^rf^iN; awan^rgOTN; ?HrrwTrf??T3n^T 3- stain^d Ex.P-4. Site p lcm Ex.P-14'was p| Investigating Officer offer giv prepared the inquest Ex.P-11 on seized plain soi! and blood door and the pickaxe unde'r ExS.P^ Prasad was sent for post-mort^ Hospital, Baloda Bazaar, where Dif post-mortem omd prepared the injured persons were also examif 10) and he prepared the injury articles weresent for chemical Laboratory, Raipur under Ex.P-2^ receiyed. After completion of investi Court of Additional Chief Judicicti turn coiTimitt'ed the case to the learned Additional Sessions Jud^ on tronsfer for trial. The prosecution in ordei^ accused persons examined 15 persons were recorded under denied •Hie material appearin9 nfed reborts <hi<ilci41-f tii*«'iT^'fWi'<.Ri<^K ^srf^irsn^r I'epared by the Halka Patwari. The |ng notice Ex.P-10 to the Panchas, fhe body of Dhaneshwar Prasad. He soil as also the broken pieces of '|-5 and P-9. The body of Dhomeshwar im' examination to the Sovemment t. Ram Sevak Joshi (PW-5) conducted post-mortem report Ex.P-7. The by Dr. Pramod Kumar Tiwari (PW- Ex.P-12 <& P-13. The recovered fexamination to •Hie Forensic Science from where the report Ex.P-21 was invest gotion, char9e sheet was filed in the Magistrate, Baloda Bazaar, who in Sessions Judge, Raipur, from where fce, Baloda Bazaar received the case to establish charge against the wiltnesses. Statements of the accused Se4tion 313 of the Cr.P.C. in which they against them in the prosecution P.T.O. ^^•SGf^'' XI-HG-78 HI+ICTI sh*llch 3^ "i|l<<l(rt<l, ®T{i<H'ie,Rl^iuy .^;A;. WT 200^ 3il^i t|a«n(yiI^i^sT) 3TI^rqiT)S:IW craTw^rstitiiti ??cITWHf?(T3TI^T b- evidence. Accused/appeltoBlt B^iimlal stated th<xt at the time of incident he vuas not at his reside has taken the defence that the d^ceased and his wife used to quarrel. After hearing counsel f^r the respective parties, tearned Additional Sessions Judge con^icted and sentenced the accused/ cppellant and his wife name^ However, she acquitted accused ^hojram and Tijia Bai. We have heard Mr. Raj^sh Jain, learned counsel for the appellant and Mr. Sudhir Bajpai behalf of the State/respondent. Mr. Jain has not disputed evidence of Dr. Ram Sevak Joshi sblllrl'n-f IfTtRTf ff fe^t' <RlWI< ^srf^Tsn^r ^ce, as he had gone to the field. l-1e Kumari Bai as aforementioned. learned Deputy 6oyt. Adyocate on the homicidal death of bhaneshwar Prasad. Moreover, as per the o^cular evidence of 5mt. Ram Kumari Shrivas (PW-1) & Kum. Kavita $hrivas (PW-2) as also the medicoil (PW-5) who conducted ppst-mortem on the body of Dhaneshwar Praso^J and who has stated in his evidence that the death of Ohaneshwar Ftrasad was homicidal in nature,it is established that the death of Dhdineshwar Prasod was homicidal. As far as involvement of t^ie accused/dppellont in the crime in question is concerned, Mr. Jain a^-gued that other co-accused persons also participated in the crime, Tritochan attacked wi-rti pickaxe, others with Lathis and most of the injur|es which were found on the body of deceased Dhaneshwar were cau^ed by the blunt and hard object. P.T.O. XI-HC-78 tllHCTI Sh*1|ttl as? ^wn^CT, ®(ftalrs,(stcii'My __ Co.ft. .^-/ WT 2000 341^1 4?|cb (tP^3^?T) 3ii^r ^rf^iN; traT31R?TitK4 S^ITWHfN'W^T ?- +l'llfcl''fl.f t<14ch'ifte^<.(«l<^l< ^sri^riTsn^T su<th Therefore, there is everypossibi by the accused persons, •as convicted wrongly. On the other hand, Mr. of the trial Court. 1-lcying heard leamed appreciate the arguments advanc^ evidence of eyewitness Smt. Ram| deceased and Kum. Kavita Shrivas as also the evidence of t>r. Ram Shrivas PW-1) has stated in hej when her husband was takin9 buf standing 1+iere, accused/appellc^ objected her husband as to why! which her husband said that he is in-law and started coming inside brought the axe ond attacked he of which her husband sustained ir intervene, wife and children of th< club as a result of which she fell arm ond backside. In the mean tii assttulting her husband with the ty that those injuries were inflicted i, the accused/^petlant has been Si^dhir Bajpai supported the judgment •ff. \. coi^nsel for the parties, in order to sd by Mr. Jain, we have perused the Kumari Shrivas PW-1), wife of the (PW-2), daughter of the deceased, S^vak Joshi (PW-5). Smt. Ram Kumari evidence that on the fateful day buf^alo inside the house^eSid'ftiey were rt Bhimlal, his wife and children he is taking the buffalo inside, on not going to quarrel with his sister- the house. Bhimlal went to his house, 4 husband with tBirt- axe as a pesult •^jury on shoutder, when she tried to accused started att-acking her with ^Jown and sustained injuries on face, tir(ie, accused Bhimlal was continuously 4xe. In order to save her life, she P.T.O. ~^^5:.?SSJ-- ;?i::!-':;^:-' -^-^ XI-HC-78 *IMMI Sb*1|th 3^ "MNKI^, S'Tfl^'IS, RlMltfy -..fe...A...^ TT^ 6 ^ 20(P 311^1 4^<h (l^c|(^s|<^r) an^r^rf^rig; (WT3n^rstitii<ti IIB: T^ STBTWtrfgg'an^T -4- ran into the house and closed accused persons came and pntere^l doors. Accused Bhimlal also att-a^ of which she sustained injuries. matter. Kum. Kavita (PW-2), ••d+L corroborated the above evidenee on tiie fateful day at about 5 p.n^ attacked her father, when her given to her also. Incross-examination of th| been oble to bring <my circumst^ini Dhaneshwar Prasad, particularly on head, hand and chest were irjfl Therefore, the argument advanc^d possibility that the injury on che{ inflicted by the co-accused avaihble on record. Moreover, &r. Ram Sevak| Police, has categorically stated above injuries found on the body the axe. Moreover, the axe whijsh was found stained with blood l|he door from inside on which the the house after breaking open the itked Kavita wilh the axe as a result Tfhereafter, she (PW-1) reported the l^iughter of the deceased, has also Iwho has stated in her evidence that accused Bhimlal came with axe and m^ther tried to interyene, beating was circumstdmce the irlf persops arid +i^Fd41-< *<i^<viTfftec^<RtWi< ^srf^R'sii^r |sse two witnesses, defence has not that the injuries sustained by \ injuries sustained by Dhaneshwar licted by the co-accused persons. by Mr. Jain that there is every ^t or hand or head nnight have been is not based on any legal evidence Joshi (PW-5), on enquiry by the In para 7 of his evidence that the of the deceosed could be caused by was sent to him for exainination as per the F.S.L. report Ex.P-21 ^ P.T.O. XI-HC-78 TfTRpTT a>t||cti T5? •^l'illd-il, »Tn*ns,RiCTiuy * * * S-t ********»+•I* * »* * ^R; 200.9 3{\^t\ y'<* (*i?l'3<:"ttT) 3TT^TqiT) R (WT»ll^l*t|i<* ??gTW?rf?(T3n^T -^ there were blood spots on 'the place of occurrence. Thenefor^ that as far as involvement of the] of 1+ie crime in respect of established beyond reasonable' i committed any illegality in comin^ the crime in question was The next ar-gument of Mr. oxe from the blunt side, theref{ inferred that the accused had nd brother Dhcneshwar Prasad, oth| from the sharp side in order to that the deceased was brother dispute, when the deceased was the spur of the moment, the from the blunt side of the ax| accused does not travel beyond On the other hand, Mr. of the trial Court. In order to appreciate the hwe perused the evidence of Kum. Kavita Shrivas (PW-2) as ali |axe which was recovered from the ^, we are of the considered opinion accused/appetlant in the commission Dhcjneshwar Prasad is concerned, it is tloubt and the trial Gourt has not to the conclusion that the author of +i'!<F<'i41-< *ii^dTftTsLc? ^tAK ^ari^irsn^r the accilised. IJain was that the accused used the t>re, from this fact ftself it can be intention to cause t6fe death of his irwise he would have used the axe finish Dhaneshwar. He also argued >f the accused ouid there was some ]t'aking buffalos inside ttie house, on acculsed assaulted the deceased that too ^e, therefore, offence against the S^ction 304 Part-II of the I.P.C. Su^hir Bajpai, supported the judgment ^xrguments advanced by Mr. Jain, we Si)it. Ram Kumari Shrivas (PW-1) ond ^o &r. Ram Sevak Joshi (PW-5). As 4 P.T.O. XI-HC-78 *11*1CTI ShHiqi 35T;5Tpncw, yTflti'is, Riyiyy .6?.:.A;.,^. ^R; 2000 3ii^i yaw ('i^tfl'5'^) sn^rsiiT^i* g5'IT3llS<ISt)*11°B ??cITWBf?(T3n^T ^' inj(Jnes per the doctor's evidence, fhere] 1+ie deceased out of which the inl the injury right side ribs 6 t^ fractured ribs punctured the lef1^ f-<. fractured. There was haematffnka present in the temporal region on above medical evidence, the doct^r to cumulative effect of 1+iese inj|jr evidence alon9 with the eyidence and Kum. Kavita Shrivas (PW-2), respectively, PW-1 has stated ir| incident she alon9 with her occurrence when her husbond wasj accused/oppellant and his childre^ her husband was going inside with his sister-in-law, the accusetl axe, first he attacked on the attacked with the axs. as a evidence, 6-10 right ribs were the temporal region there was also 1+iere. regu »bl<lfrl'ifl-f^IK<-ir^'te^t<Rl<-t;l< ^srf^R'an^T were seven injuries on the body of gury which was on the chest beneath 10 were fractured and dlao^the lun9. Bone of the left hand was also l^ on the head and clotted biood 1 the left side of the skull. Wi-Hi the has stated that the death was due i. If we read the above medical |of 5mt. Ram Kumari Shrivas Q'W-l) ^vife and daughter of the deceased, her" evidence that at the time of ^hter was stonding at the place of taking buffalo inside •t+ie house, the objected to that, thereafter, when that he is not going to quarrel went to his house and brought the shoulder, thereafter, continuously ^ult of which, as per the medical I, hand was fractured, even in blood and other injuries were dau^hte sa^ing frdictured. clbfted P.T.O. JXI-HC-78 *<1*1WI S»»*llch 3^'^iraRTq', ®-rf)«'16,IsKtHy —^ V^ 200 c? 3<1^1 4s|* ('^3^^') 3n^rgirR-ii+ (raT3<[^l sb^i'b CTaTWBfi'craii^r ?• accdse 01(1 The above act of the accused caused repeated blows hand in order to finish Dhaneshufcr can be gathered from the circum commitfed, nature of the we^por( injuries were inflicted and the caused,<ts the accused attacked ribs were fractured which pierce^d haematoma on the left tempor^xl fractured and there were other] aboye facts it can safely be infer^ed cause the death of Dhaneshwar In the circumstances, we there is no illegatity or infirmity] convicting and sentencing the 324oftheI.P.C. In the result, the appeal, dismissed and it is hereby dismisi accilise Sd/- Acting Chief Justice Soma ^raf^ftT wtRff ff tecit-d^reerc ^srf^R-sn^T sd/oippellouit is suggestive that the •the vital organs i.e. chest, head and Prasad. Intention pf the accussd itonces under which the offence was used, place of the body where the |m.anner in which the injuries were |on the chest as a result of which 5 into the left lun9, even there was region, bone of the hand was injuries also. Therefore, from the that intention of the accused to was writ large. ]pre of the considered opinion -Hiat in the Judgment of -rtie triat Court lised/appellant under Sections 302 & Pitasad ^eing devoid of merit, is liable to be ^d. • ^_-, Sd/- '; SuniiKuinar Sinha Judge P.T.O. ;\n] •m/s^^