wwygggw *xf IN THE HIGH COURT OF JUDICATURE AT JABALPUR (MP) I gel g mon Bench (Criminaq cammAL APPEAL OF 1997 DN X _ APPELLANT<1n gailr) : Girdhar pas alias méirdha nae son of Saméreo alias Vikram- Sahu age¢ about 28years resident of village Bhalapur, P.S. Mohla, district Rajnandgaon (MP) . VERSUS , CRIMINAL “WWW— APPEAL mma SECTION o 74‘ 2 ‘ OF THE CODE OF CRIMINAL , ; y// w RESPONDENT : The State or M.P. througii the ,3 mwJ2. a“£§E§E% Statioa House Officer, Mehla, dist. /$ww§ulw ”mummmmm {A Rajnandgaon OWL“ wwWMm-mz' F‘ Q“\ CONVICTION ; SENTENCE mwe~$the J. Under IPc section r 321; of ‘ i R I. for Zyears and fine of 1k 500. In default of payment or fme s I. for a term of 3months. iimnder section 302 of the IPC ' 11 R I for life and fme er m.1ooo/=. a l . In default of payment affine S I. ‘ for a term of 3months. ; Both sentences to run concm‘rently. ; . §U§§ECATURE A? @XLAsPUR {CHHATT15éARm HEQ’H COURT OF 31VE$IGN aENCH*: — H8N'3LE SHRE LC. 5HADSG éi: HONBLE 5HRI DR. DESHMUKH, .TJ'. Eirdhar Das uiias Dhir‘d'ha Das - Versus ~ 5mm 0f MP. (rmw Chha’r‘risgarh) UE§MENT FOR CONSIDER‘ATIGN W Sdl- L.C. BHADOO 7 Judge HGN‘gLE :3HRE D.&‘ DESEMUKHI 3’ T KW‘ Y Sdl- ) D1hp Raosaheb Deshmukh Judge I- ” r x 5 -S-ZUUEY’ ”i . Sdl— L.C. BHADo _§/“dgf/#i W \ K , ‘ ‘ Criminai AQQaa! N0202é of 19§7 . ‘ g i) 1 PG§T FGR IUD§MENT ON 2&i4 JUNES 2:005 W r LT o ’i'rd HIéH CGURT OF JUDICATURE AT 5ILASPUR, CHFIAWI$6ARH DWE$IC3N $EN£H*: - HON’BL§ EHRE LC. aHAEGG 3: HON'BLE SHRE DR. DE5HMUKH. 33'. 5riminai Apnea No.2026 of 199? Girdhcr Das alias Dhim‘ha Das - Versus — 5mm of MP. (mw Chha‘r'risgar) h Presem: - $hm' RX. Jain, Advocafe: Far‘ fhe appelicmt Shri U.N.S‘ Dee, Public Prosecu'ror wifh Shri ékhil Mishm, Panel Lawyer: For fine S‘r‘ufe/respondenf. JUDGMENT (Delivered on 13 g. Juae, 2095) The foHowing judgmam 9f ’rhe Cour? wa$ daiivered ‘oy £5. :g‘ffgigi‘wi J”? - 3.me ! accused/’apgaiian‘r has prefewed *r‘ni§ crimina¥ appad being aggrievw by fhe judgmen? of convicTion and semence cia‘fea? 2Q“ Augus? i997 passed by “me 15* ,4ddh‘i0m: Eassior’ls Jud’ge, gaiwar3dgam m 5T. No.29/“3‘? whgreby iaomad IfT #‘xdamami € 5 Eassians Eudqe, Rajnwéqaw affer 'rmidmg ‘i'ha accusadfapwkam‘ guii%y “3r i'he cammiss‘ian crf The sffenca 'Lmder Sadion UQ’; of Jiha I?C fer commii’fmg “the murder of Rikhi Bai, senfenced him ‘ro una‘erga imprisonmenf for life and To pay a fine of Rs.1,0DO/-, in defauif of paymem‘ of fine 1‘0 fur‘fher Lmdergo SI. for 3 monfhs. He aiso heidfiha accused/appaiiam guiiiy for "the commission of ’rhe offence under Seci‘ion 324 of fhe I.P.C. for voiunforiiy causing simple injury By sharp edged weapon § r Z ,1 L}ee id a ‘ +0 Junki Bai and sen‘renced him To undergo RI. for 2 years and To pay a fine of Rs.500/~, in defaulf of paymenf of fine To fur’mer undergo SI. Jim" 3 monfhs. Learned 15+ Addi‘riGnal Sessions Judge also direcfed fha‘r bofH fine abowe sen‘rences should run concurremly. a ii (2) BriefEy sfa‘fed proSecuTion case is fha‘l’ on 1—9~96 ai' abou‘f 11 am , when deceaseci Rikhi Bai and Janki Bai were ramming from The agricuifurai field carrying wi‘l‘h Them bundles of grass for The purpose 0f feeding The . ’ ca’H'le, on The way The accused/appellanT appeared in frcnT of Them and aeked ] ‘ §l$l Ea lo QCCOEHpGlIy Il Hi. ON lelusal by Rl<hl Ba. , lie S Gl lad Ui GCklHg awmi Bel wiTh a knife. When Janki Bal Tried To inTervene in order To rescue Rikhi goi, The uccused/appellan’r also aTTocked Jonki Boi wiTh o knife, as a resul‘i‘ of which she received injury on The Thumb of The righi" hand. In The 3 process, The accused/oppellonT dsgoLilTed wiTh a knife on The neck, head and hand of Rikhi 3m. Janki Bai rushed To The village and informed obouT The incideni' To moTher Ankleheenbai, Bodhon, Bihari and ofhers and informed ThaT Tr“ i Tlne accusedx’appellanf is eTTacking Rikhi Bai near Neem Tree. C’n receiving f1nis informaTion, when These persons wenT near Neem Tree, They sow ThaT / l Rikhi Boi was iying on The ground. One porTion of her neck was foiind cuT and sue L oied i on accounT of injuries. The injuries were also presenT on The hand of Qikhi Bai‘ Janki and Bodhanrom wenT To The Police STaTion Mahala aT abouT 3 pm and lodged The FIR. Ex.-P/2. On The basis of merg inTimaTion (Ex—W3) given 'oy Eodhanram, FIR. (Ex.~P/2) was regis‘rered aT Crime No.45/96 for The commission of The offence under SecTion 302 of The I.P.C.. (3) AfTer reaisTering The case, The InvesTigaTing Officer reached To The siTe and prepared The siTe pian Ex.—P/1 in The presence of fBiharilal PaTel and Janki Bai. Vide Ex.-P/4 The InvesTigaTing Officer Took inTo possession The Thumb porTion which was cuT and separaTed from The hand on acoounT of The knife injury caused by The accused To Rikhi Bai. AfTer giving noTioe Ex.-i3/5 To Tine D . anchas, prepared The Panchanama of The dead body of Rikhi Bai Ex.-P/6. Vide Ex.—P/"' I T‘ine InvesTigaTing Officer Took inTo possession The sTring of Mgumemu , i l beads ’Erom ”(ha scene of occurrence. He aiso Took imo possession The blood smimd so}! and piam soi! under Ex.wP/$ from The scam of occurrence, The dead body 0f Rikhi Bai was sen‘r for posfmorfem examinafion vide Ex.—P/9-A f0 The Primary Heal'fh Cerm‘e, Mohaia where Dr. 5R. Mandavi (PW—8) conducfed The posfmarfem on “i’he dead body of Rikki Bai and prepared The pos’rmsr’rem reporT in which he noTiced as; many as 11 injuries meh’rioned in The pos’rmorfem report Exceg’r injury No.11, aii *rhe injuries were incised wounds. Thumb af ieff hand was ampui‘ai‘ed fram prcximal phaianges. One incised wound was presen‘r in ‘ihe middle finger of Iefi‘ hand. One incised waund was dist} preseni‘ on The ie‘f'i shoulder jein‘i obiiqueiy. One incised wound was preseni on ihe iefi cheek To The ief‘r ear spindie shaped obiiqueiy, as a resuii‘ of which ear was Torn in Two parisi Anoiher incised wound was presenf on ief‘i‘ cheek To back of head over occipi‘iai bone and ii’ aiso forn ear in Two parTs. Injury No.8 was in The naTure of incised wound on iaTerai aspeci‘ or neck To back of neck in The size of 5”x2"x4” and greaT vein of neck was cuT by This wound. Third and FourTh cervical verTebra were found fracTured. OTher incised wound was on righT forearm in The size of %"x1/2"x1mm and There was abrasion on The righT shouider. In The opinion of The docTor, The cause of deaTh of Rikhi ‘Bai was shock due To excessive haemorrhage and fracTure of 3rd and 4*“ cervicai verTebra. The docTor also examined separaTed piece of Thumb vide Ex.—P/’10«Ao He also examined injuries of Janki Bai and prepared The reporT Ex.-P/11—A. He noTiced one incised wound on The righT palm in The size of 2"x1cmx1cm. CloTTed blood was found around wound. The knife was aiso ekamined by The docTor and he prepared The reporT Ex.~P/12—A whereby he gave his opinion ThaT The injuries on The body of The deceased could be caused by The said knife. He also examined full panT of‘The accused which was found sTained wiTh blood iike maTerial. He also examined Sando Baniyan which was sTained wiTh blood like maTerial.‘On The basis of memorandum Ex.- P/i7 given by The accused The EnvesTigaTing Officer recovered The knife ArTicle 'A' under Ex.~P/18 aT The insTar‘i‘ce of The accused. ’/ 5:; 92 (4) Afier' compie‘l’ion of The invesfiga'rion, charge sheaf was fiied againsf fhe accused/appelian‘? before fhe Cour? of Judicia! Magiisimw Ambagarh who in Tum commi‘rTed 'fhe case To The Sessions LJudge, Ra‘jnandgaon’fr‘om where learned 15" AddiTional Sessions Judge, Rajnandgann received The case on Transfer. The prosecu’rion in erder +0 prove fhe charge against The accuse'd/appellam produced 12 wiinesses. The Addi’rionai Sessions Judge aisa examined The accused under Secfion 313 of The Cr.P.C. in which he cienied his invoivemenT ih The crime and sTaTed ThaT The wiTnesses are feise, he is innocenT and he has been falseiy implicaTed in The crime. AfTer hearing The argumehTs of AddiTionai Public ProsecuTor and counsel for The accused, ieamed AddiTionai 5essicms Judge corwicTed and senTenced The accused in The manner menTioned in The eariier parT of This judgment (5) We have heard Mr. R.K. Jaini caunsei for The accused/appeHanT as aise Mr. UN.S. Deo, Puoiic ProsecuTor and Mr. Akhii Mishm, Pane! Lawyer u .C g-or Tne i STaTe/respondenT. {6) As far as The naTure ofdeaTh of deceased Rikhi Bai being homicidal is cencerned, The same has noT been dispuTed by counsel for The accused/appellanT. Dr. SR Mandavi (PW-B), who conducTed The posTmorTem on The dead body of Rikhi Bai, has clearly sTaTed ThaT he ncTiced as many as 11 iajuries on The body of The deceased and clue To injury on The neck greaT vein was found cuT. Third and FourTh cervical verTebra was found fracTured and The cause of deaTh of The deceased was shock due To excessive haemorrhage and fracTure of Third and fourTh cervical verTebra. The naTure of deaTh was homicidal and The injuries were anTe-morTem in naTure. AparT from ThaT, PW- 1 danki Bai, who was eyewiTness To The incidenT, has clearly sTaTed ThaT The injuries were inflicTed by The accused/appellanT wiTh a knife, Therefore, in view of The above evidence, iT sTands proved ThaT The naTure of deaTh of Rikhi Bai was homicidal. (7) Now, coming To The,_quesTion of involvemenT of The accused/appelianT in commiTTing The crime in quesTion, learned counsel for The ‘)l accused/appeilam while referring The evEdence of Janki Bai argued fhm‘ in View of ‘rhe evxdence 01‘ 1hls wrmess m ’rhe cross-examma‘i’lon affer recewmg The mJurIes she .ei! down and her eyes were closed fherefore she couid m? have wifnessee “(he assaui'r by The accused. While poinfing on? fhe evidence of rhis wifness, he argued ThaT in view of The above evidence of This wi'mess, she cannoi' be frea‘ie‘d as eyewh‘ness. (8) On ihe oiher hand, Mr. Akhii Mish ra argued 'ihai Janki Bai is an ‘ injured wifneés who herseif received injuries caused by The accused, The emre 1+ ccmnO'i’ be said na‘i‘ she had noi' wii‘nessed i‘he crime. (9) Having heard learned counsel for fhe pari‘ies, we have carefully gone Through The evidence of This wiTness. In The examinaTion—in—chief, This wiTness has caTegorically sTaTed ThaT aT abouT 9—10 a‘m in The morning on The faTeTul day she along wiTh Qikhi 3ai were reTurning from The agriculTural field afTer collecTing The grass from The field for The purpose of feeding The caTTle. Near Neem Tree The accused/appellanT came in fronT of Them and asked Rikhi Bai To accompany him, buT Rikhi Bai did noT agree on which The accused sTarTecl aTTacking Rikhi Bai wiTh a knife. She Tried To rescue Rikhi Bai and asked The accused why he is aTTacking Rikhi Bai, on which The accused also assaulTed her wiTh a knife on The righT hand, as a resulT of which she received injury on The righT hand and blood sTarTed oozing ouT of The injury. The accused assaulTed Rikhi Bai wiTh a knife buT she could noT see The place of injury. Rikhi Eai was proTecTing herself wiTh The help of her hands ThereafTer, she lefT The scene of occurrence and came in The viciniTy and informed The moTher of The deceased namely, Ankleheenbai abouT The incidenT and ThereafTer, she also informed Bodhan and Bihari. ihereafTer, all of Them lefT for The scene of occurrence where They saw The dead body of Rikhi Bai and from There she along wiTh Bodhan wenT To The police sTaTion and lodged The reporT. The police prepared The siTe plan Ex.-P/1. IT is True ThaT in The cross—examinaTion she has sTaTed ThaT due To The assaulT on her, her gM eyes were ciosad and she fa“ down, Thereaf‘rer‘ she could no? see The accused and Rikhi Bai as f0 where 1‘hey wenT. (1G) On The basis of 1rhis isolmed piece of evidence, affer‘ examining whole evidence 0f This wi‘i’hess along wifh oiher evidence avaiiabie on record, if cannai’ be said ihaT she had no? wi‘rnessed The crime. l? may be True Thai on‘ accouni‘ of receiving 'i'he injury she feil dawn and her eyes were ciosed, bu? merely an accoun‘.‘ of Thai her presence on The spoT cannoT be doubTed for The reason ThaT she herseif received injuries of The knife caused by none eise Than The accused/agpellanT, Therefore, she fails under The caTegory of injured wiTness. This wiTness has caTegoricaHy sTaTed ThaT when The accused sTarTed aTTacking Rikhi Bai, Then she Tried To rescue her on which The accused oTTacked This wiTness. Moreover, her presence and wiTnessing The incidenT sTands corroboraTed by The evidence of Ankieheen 3ai, Bedhan and Biharilai To whom she informed and They along wiTh This wiTness came back To The scene of occurrence where They saw Rikhi bai was lying dead. ThereafTer, This wiTness along wiTh Bodhan Ram wenT To The Police SToTion Mohalo and lodged The reporT Ex.-P/3. WiTness Bodhon Rom has been examined as PW—4 who has corroboraTed The evidence of This wiTness. The facT ThaT The accused asked Rikhi Bai To accompany him in The presence of This wiTness finds suppor'T from / The previous conducT of The accused and To prove The previous conducT of The accused The prosecuTion has adduced The evidence of PW—Z MomTa aged vabouT 11 years and she has caTegorically sTaTed ThaT before The incidenT The accused gave her a leTTer To be handed over To Rikhi Bai. She handed over ThaT leTTer To Rikhi 3ai and informed ThaT Girdhar has given This ieTTer. The evidence of This wiTness proved The facT ThaT The accused/appellanT was following The deceased namely, Rikhi Bai and wanTed To keep her in his house as his wife. This facT TurTher finds supporT from The evidence of PW-3 Radha 8ai who has sTaTed ThaT 8-1§ days before The daTe of The incidenT Rikhi Boi informed her ThaT The accused wanTs To Take her aT his residence, buT she does noT wanT To go To The h"ouse of The accused, even if iT is offered l 'fo her by her paren'i's To send her wiTh a handicapped person bLn‘ she wiH noT ga +0 The house of The accused. She disclosed ‘rhis 'fac’r +0 her because aT ThaT Time They saw The accused on The way and on seeihg fhe accused; Rikhi Bai rushed info The house of fhis wifness. 15 days fherea‘ffer she saw 1‘ha1’ Janki Ba§ was coming crying fhai accused €7irdhar has murdered Rikhi Bai. (11) PW—4 Bodhan Ram has smfed *rhcd Janki Bai informed aboui' fhe ihciderri 1'0 him and ofher persons and They wen‘r To The scene of accurrence and saw The dead body of Rikhi Bai and on Thai he iodged “rhe reporf Ex.—P/2 a? fhe Foiice Sfafion Mohaia which bears his signa'rures. The fa‘rher of Rikhi Rai PW~5 Chanderiai has also proved The conducT of ihe accused and he has given The evidence f0 ’rhe effec? fha‘i‘ once his wife informed him Thai ”(he accused gave a iei‘Ter f0 Rikhi Bai which has been Torn ouT by Rikhi Bai. On This, he wenT To The viliage PaTel Bihariiai and Panch Dwarika and complained againsT The conduci’ of The accused Sarpanch, KoTwar and oTher persons convened a meeTing in which The accused appeared and admiTTed abouT giving leTTer To Rikhi Bai and PanchayaT advised To The accused noT To do such Thing in fuTure. PW-7 Biharilal'has sTaTed ThaT on The TaTeful day he heard The cries and Janki Bai informed abouT The incidenT and he saw The injury on The righT Thumb OT Janki Bai. le along wiTh oTher persons wenT To The scene 01" occurrence and saw The dead body OT Rikhi Bai. Therefore, in View of The above evidence and ioohing To The previous conducT of The accused wiTh Rikhi Bai as he was inTeresTed in keeping Rikhi Bai in his house and he was reguzariy l l following Qikhi Bai and in Tha'i‘ connecTian, he senT a ieTTer aiso, Tnere‘mr”, ¥ f i looking To This evidence also, The evidence of (fanki gai regarding wiTnessing The crin‘ie cannoT be disbelieved. On carefui consideraTion of whole evidence, we are of The considered opinion ThaT The evidence given by'Janki Bai inspires confidence of The CourT and The evidence of Janki Bai is naTural and TrusTworThy. Even The knife was recovered aT The insTance of The accused under Ex.—P/18 based on The memorandum given by The accused Ex.-P/17 which has been proved by The InvesTigaTing Officer. There is simple denial of £i) Tina accused. Therefore, wa do no? find any iHegalh‘y and infirmi'ry in The finding of aonvic’rion racorded by ‘earned friui Cour? as The same is bqsad on iegai evidence. Fur‘rher' we do no? find any reason To differ from The View Taken by ‘ihe Win! Court (12) Now; coming ‘io ‘i'he quesi‘ion of nm'ure of 'i'he crime, we are of ”fhe considereo opinion i'ho‘r The accwed agsauifed repeaiediy wi‘i‘h a knife on ma 'v‘i‘E‘a-i por’r of The body, as a resuh‘ of which .u.nird and four‘ih cervicai ver‘i’eijra was fraciured and grecd’ vein of i'he neck from ‘i‘he iefi side was cu‘i‘. The accua‘ed cau3ed 1i. injuries one offer cno‘iher in a quick Succession wi‘i‘h a oeddiy weegon wh ion i dome were sawed hey him a3 ’Rikhi 3w was no“? agreeing To remain wi‘ih fhe ‘ e. E? can safely be inferred from fhe faci‘s and evidence avoiiabie on record ’rho‘r The accused was reguioriy following The deceased and when he reached To The conclusion ThoT Rikhi 3m is noT acceding his request he decided To finish Rikhi Boi. As per para-7' of The evidence of Janki Boi, The accused was already married and he hod Two children, even Then The occused wonTed ThoT Rikhi Boi should remain wiTh him os his wife. Therefore, findih§ of The Triol CourT ThoT The ocT of The accused was inTenTionol finds supporT from The focT ThoT when Rikhi Boi refused To go wiTh accused @irdhor, he was reguioriy following and persuading Rikhi Boi for The some and iT appears ThoT he commiTTed The heinous crime of murder ouT of frusTraTion. (’13) I‘n The resulT, we do hoT find any subsTahce in This appeal] The some is iiabie To be dismissed and iT is hereby dismissed. Q mince - E.Vfivv‘ J ,E. $ J3!» §fn££bnnign N GT -’ .i‘ilp .i SC. ‘ , . ,.9 d ay? d 4.!”qa sm— l L.C.BHAD00 ; “i Judge 11 i ‘r ,. 1