^B^ fe ^ ^IA^ |oii0it| lyjLte -lUI<y_ <^SsyS &d^ J^llS, 111S f (HUB j£^£&ih -^^ •Ay^ -lysy. /JLbVakto -JU^ /iAl^^tU^ ^y-l^ '^ 0$: 6£: f .jfcjltfe B!^ -iyj3j- .^. fcslA -iU^ -i^J-b ^^ 1^1 ^^ -l-^J? MjrV^ie ^^faK 'ss^-^^^ f ..: ^ . • "fuu ) qousg uoisjAfo ^^c,\\-^\\ ^fe4^£ vyylj. ?'B ln <l2fcUJ2-lt3iA tQi: jej§£t23hll^fej.fet ^hM «9.t,<;?OOOOPdO ^^'^ ^,^ ^/// ^\ ^- XI-HC-22 'S^ ^|<41d<tl/'^fr97T?, ft<nwy NaN^I 5hH8<3^ 3TTi[?T '^3R ...&...ft...."..€./.•r-'wt 200 © I^F'^T' 3?T^T^T: f<T1l5b STli^T ^TIW^Tf Divisfon Bench: - 5 Hon'ble Mr. LC. Bhadoo and tion'bte Mr. Dhirenclra Mishra, J4> 9-1-2006 Miss Sharmiia Singhai, counse( Mr. U.N.S. Deo, Additional Pub| Oraijudgment By this appeai under Section appelianj. has questioned thelegality of sentence dated 2-3-2000 passed^ Basfar at Jagdaipur, in SessJons'Triat 1 Sessions Judge after convicting the offence under. Sections 302 & 307 o1 imprisonment for jife and pay a fine fine to further undergo R.l. for c?neye< pay a fine of Rs.5,000/-, in default of for one year, respectively. It was fu shall run concurrentiy, The prosecution case, in brief appea! is that Pursati (PW-1) lodge|: Jagdalpur on 16-3-1994 to the effeqt nephew Mangai Singh came to him| instanee he refused tp give.money, and again asked for money, on this h< Singh-aiong with Laxminath went towc 8 p.m. Mangal Singh again came t6 chl^{<rt4)^ ^TPraf ^ 1^^ I^R^R i7a^NTT3rT^i forthe appellant c Prosecutor fbr the State/respondent. |374 (2) of the Cr.P.C, the aecused/ the judgment ofconyiction and order ay 'the 3rd Adclitional Sessiohs Judge, IMo.262/94, whereby learned AddJtionaJ 1 accused/appelfant for cQmmisslon of the I.P.C. sentenced him to undergo K Rs.5,000/-, in default of payment of <r and to undergo R.l, for ten years and |>ayment of fine to further undergo RJ. tther directed that both the sentences f, necessary for the disposal Qf this •|j a report Ex.P-1 at Pojice Station: |hat on 16-3-1994 at about 6 p.m. his and demanded money, in the first i|n which Klangal Singh became angry Igaye three rupees; thereafter, IVIangal rds fhe house ofSadhuram. At about carrying 'Kadra' (aniron instrument hlm [1T^ ^Rsi^ XI-HC-22 ~5^ ^1141<rt<4, 'grtNPT?, l^irey 3Pn^T^T- <f^ri^3?n|sT ^i+ii^ ^f^a <--^\1' /'^ WH^il^^l<3h 3T(^T 'q^^ ^^""""""" ^ 200 © like spade) in his hand and said that| the sharp edged Kadra on his ieft sh|: injury, again he nlade secpnd attempt the ^ssauit and faised cries, hearin^ aiso came and intervened, and Man^a the yyay, he also assaultecJ Mangat wh|ch Mangal Ram received injury Kadra near the house of Sadhuram; and informed that Mangal Singh has 'today 1 wjil kill you" and assauited wlth ^ulder as a result of which he receive<j bh hjs neck, buf he saved himsetf from the cries, his wife and brother Chaitu Singh ran away carryirig Kadra. On wjth the same Kadra as a resuit of )n the Hand and back. He threw the 'hereafter, Sitaram & Devi Singh came lurdered Laxminath. Ram Receiving thi& report,'the Sub the commission of offence under See ieft for the scene of occurrence. AW he prepared the Panohnama of the v/eapon of offence was taken into po^ 6 was prepared by Investigation Of arrested and examined by Dr. S.R. T^ report Ex.P-11; The weapon of offenjc the doctor under Ex.P~9 and the sartie body of LaxnTinath was sent for post-r conducted by Dr. S.R. Tandpn, As^ dagdalpur, who prepared the post-r Ram & Pursati were also examinecl reports EXS.P-16& P-17. ' After completion of investigati accused/appellant irt the Court of Ju< who in tum committed the case to chHid^W^t "^fe^ <fa^<< ^siPwsn^T |nspector i;egistered F.i .R.No.129/9^1 for lions 302, 307 & 323 ofthe I.P.G. and giving notice Ex.P-2 to the Panchas, >ody of Laxminath Ex.P-3. Kadra, the ^session under Ex.P-4. Site plan Ex.P- Ficej S.N' Shukla. The accused was - andon (PW-8), who prepared the injury (ce, Kadra was sent for examination by was examined by the doctor. , The tiortem examination. Post-mortem was {istant Surgeon of Maharani Hospital, report Ex.P-12. Injurtes ofMangal |?y the doctor and the doctor prepared mottem 1-+ tn, charge sheet was filed against the (ciaj Magistrate, First Class, Jagdalpur, |the Sessions Judge, Jagctalpur, from . . ^ [Ti^^71^ 1 T XI-HC-22< W^T^T 'f^riyCT^T s^+ii<=t) ^f^a '"^ ^,: + ^"^ <^INH<LI, ^Til^Ko, fa<nst<ii< 3ff^T TS^? ___....<j3A.:iLQl. WH^IT%H8cb •^2000 •I^^T' where learned Additional Sessions Jipdge received the case on transfer for triat. '. '"'. ,.:'.••" . ' ^ . . The prosecution ih order to appellant examined nine witnesses. ^ under Section 313 of the ,Cr.P.C. evidience and stated that tie is irinoc< the crime, Learned Additional Sessiclns of Additional Public Prosecutor and sentenced the accused as mentioned prove charge against the accused/ ^tatement of the accused was recorded |in which he denjed the prosecutipn ?nt and has been falsely implicated in Judge after hearing the arguments ^ounsel for the accused convicted and |n para 1 of this judgment. • We have heard Miss Sharml appellantand Mr. U.N.S. D^o, leamec| of the State/respondent. The fact of homicida! nature displited by Jearned eounsel for the the evidence of Dr. S.R. Tandon (PV Laxminath was homicidal in nature. ; As far as the question of inv^Ivement committing the crime under Section S( cancerned, Pursati (PW-1) has stated| ,when he was sitting in his shpp, the ac Kadra behind his body, when he enqi^red what he has concealed behind his attacked with the Kadra on his neck down. Hearing his cries, his wife Chetu also reached on thte scene. Cl' <=hS^id4l"< WT^ ^ ft^ ^H^ IR'aRff^R 31T^I la Singhai, learned counse! for the Addjtional Pubiic Prosecutor on behalf bf death of Laxminath has not been ac|cused/appellant. Apart fromthat, from V-8) it is established that the death of of the accused^appeJtant in p7 of the i.P.C. by attacking Pursati is |in his evidence that on the fateful day jcused came to his shop by concealing, from accused Mangat Singh as to ?> he replied that "I wilt kiil you", and Iwhich hit on his left shoulder, he fell tnari came, the father of the accused |etu tried to catch the accused and he [•^^^ bo|iy Sohiari XI-HC-22 v37T^T'^T I<r1l<=b ^Tif^ 5(?^ict»^T^T I-N^ ^T^ ^lt^lld<4, ^xftwKo, fadl^y 3?T^T '^ra? ^SN^Il ITONT' XSira? / ^£0^'.ite •1^^' 3n^T ^cYIW <yf^a -^- was able to catch him by. his,baniyarl piece of baniyan came in the hand o| evidence of PW-1 Pursati has been Pursati. Injuries of Pursati were exai^ the injary report Ex.P-16 and he h^ stetedin his evidence that on 17-3"' him. He saw that there was a lacerat< left shoulder, a lacerated ^ound in t| oozing out of both the injuries, and and blunt object. His injury report is E [, however, the accused ran way and a the father of the accusect. The- above ^orroborated by Somari (PW-2), wife pf tlined by Dr. M.P. Ti\^ri, who.prepared |is been examined as PW-9.Me has 1^94 injuriesofPursatiweFeexamtnedby ^d wound jnthe iength of^cms. onthe »•:•••• . . ; -. -" |ie length of 1" on the neck, blood was fc|oth the injuries were caused by a hard ix.P-16. tn order to ascertain fhe fact wl estabJish from the evidence that accy the intention to cause his death, the e by us. In cross-examination, para 8 carfie fo him, he enquired as to whal become alert and jumped over the fell down on the ground and on ac( neck, thereafter, when he cayght ti shouldef Only once the quarrel too In view of the evjdence of this injured Dr. M.P. Tiwari (PW-9) in which he blunt and hard object, and as per tl- nature, it cannot be held that the ac< sharp edged portion of Kadra with th been mentioned above that this v jumped over the accused, both the p process he received injuries and the <^i^f<n<flri ^i^<yir'? 'fe^ <r»i^i< ^3?ri^P:r3TF^[ -\- jiether the prosecution h^s been able to i^ed Mangal Singh attacked Pursati with i|yjdence of Pursati (RW-1) js scrutinized he has stated that when the accused he has concealed behind his body, he adcused as a result of which both of them ^ount bf that he received irtjury &n the |ie accused he received injury on the |< place between him and the acGused. IwitnesSi also looking to the evidence of tjias stated that injuries were caused by |e- injury report, injuries were simple in <|;used attacked Pursatj (PW-1) with the fe intention to cause his death. As has titness himself became cautious and ^ersons fell down on the ground, in fhat lijuries were simpte in nature, therefore, [Tft'^ ^Rsi^. XI-HC-22 '3'^ '^^l<rt^ ^Tl)<i<l^f^^y ^^^llSi/^^ "Iq^T""""""'"""""" 3n^T^T f<rii<=h sniRT $b^ior»<yf^a ^' there is no prosecution evjdence on attacked Pyrsati with the sharp edged | The injuries were caused by the blunt offence under Section 307 of the I. accused/appellant and only offence made out. H&nce, conviction under sustained, and the same is liable tc| accused is iiabte to be convicted ui sentenced to R.l. for one year for that 6|fence. rjecord which shows that the accused IKadra in order to commjf his murder, 4nd hard object. In the circumstartces; ).C. was not made out against the L|hder Section .323 of the I.P.C. was >ectioh 307 of the I.P.C. cannot be be set aside, instead thereof, the hder Section 323 of the l.P.C. and Now, cpming to the involvemen^ murder of Laxminath, Miss Sharmil^ accused/appellant argued that there i^ evidence ofSadhuram (PW-6) is that h|i together, beyond that there is no for acquittal against the commission I.P.C. evidehce On the Qther hand^ Mr. U.N| Prosecufor supported fhe judgment of + Havjng heard learned counsel judgment and eyidence on record. It j| evidence regarding thejnwlvement of of Laxminath. The whole case rests 6n| to convict the accused based on thel settied principles of faw iaid down by th Nesar Ahmed vs. State of Bihar ', ttt a ii/aoc? i-Kao^7u v/ii chl^lid^ ^IHdT'8 'f^t' <Rn^i< ^T3ri^T3?T^T of the accused in the commission of Singhai, learned counsel for the no eyewitness ih this case and the rsaw the accused and the deceased ?, therefore, the accused is entitied f offence under Sectlon 302 of the S. Deo, leamed Additiona! Pubiic trial Court. the fpr the parties, we have perused the l^ true that there is no direct or ocular (he accused in committing the murder |the circumstantial evidence. In order lcircumstantial evidencev ^s per the •)|^ Hoh'bte Apex Cpurt in the matter of ref|)orted jn AIR 2001 Supreme Court C?VIUCt t^C, ^VIUIV U IV XI-HC-22 3TI^T^F[ ^ich 3n§?T sb^iob ^(^a 'H^r '^^rai^, ^^ 3?lit?T 'q^? / Hltidl^Ni*'*^^'^ '***'''* 'T^I 20Q ^) ^^^.....^.....•...^...........,...... ^H^T'^IT^'^ritn T CM^{<!i^Tyi WR^if ^ f^ft <p»i^r< i73ifeH3Tr^r record conviction, it must satisfy inference of guilt could be drawn h iself that -eircymstances'from whjch an ave been establlshed by unimpeachable evidence led bythe prosecutJQn an|d that all^^ are not only pf a concjusjye nature unerringiy point to the guHt of ^ccused and are oot capable Qf any explanation which is not Gonsisten| accysed. Now, we shall proceed to ^ wtlether based on the above settled to establish the irivolvement of the ^ i.e. the murder of Laxminath. Tti accused with the murder of Laxmin^ 1. that, l.axminath was s| >yt also complete the chain so 1ulJy as to wjth fhe hypothesis of the guilt of the xamine the prosecytron evidence as to principle, the prosecution has been able ccused/appellahtirithecrimeinquestion e prosecution evidence to connect the th relates to following circumstances: - 9en alive in the company of the accused just before his deat|i white going towards the house of Laxminath; 2. that, the accused at Ihe same time wentwith the weapon of offence, Kadra, to the the same Kadra. Th' Mangal Ram with the throwingthe Kadra; 3,that,Dr.S.R.Tandon "4. that, the body of the deceased Laxminath accusecl; house of Pursati and assaulted hjm with $ accused ran away arid also assautted same Kadra and thereafter, he ran way (PW-8) has opihed that the injuries which were fbund on fhe bojdy of Laxminath might be caused by the Kadra in question whi^h the accused was carrying; and Ideceased was found on the way where |was seen alh/e in the company of the [Tft^ ^Ra^ XI-HC-22 . ^3T^T^, 'f^W'Sn^T ^tflcti <^i^a :<^- ' --.^ ^- Z^'^TPTI^, ^^^^<o, ^ ^^s:^^ WH^IT^^lch Icl-b^T' ^T^T '^^T^R 'y($a -7 circilmstance in order to prove the first Sadhuram (PW^6), whp has stated 11(1 at about J p.m, he saw deceased Mangal Singh going towards the h6i| of Mangat Sjngh ahd MahgaJ Singh went to the shop and resjdence of| accused Mangai Singh was assauit|r received imury on the neck, .therea^ and intervened. W\t that time, his s< and the accused assQUlted hjs son of the injyry. Thereafter, he saw tl' house of Cheti Bai and there was ini this witness has stated that after-on< has been murdered and the yHlalE Laxminath is iyjng on the road. The and he had no enmity against the a< of this witness, he saw deceased accused just one hour before he saw wtiere they were going together. Apex Court in the matters of BQdhr^ Jammu and Kashmir reported irT (2( State of Rajasthan reported jn (200|2) accused with the murder the time ga{ be so proximate that there should nc^t person in between and the last circumstances must point towards cnme. chl^d^f 'Wl^ff'? 'feTst <fa^i< ^•^rf^RSTT^r », the prosecution has examined his evjdence that on the fateful evening .Qxmmath in the .cpmpany of accysed ise of Laxmmath, Laxminath was ahead ^as fqllowing Laxminath, Thereafter, he Pyr$ati, heard e cries and saw that |ng Pur^ati as a result. of which Pursati ter, father of the accused Chetu came ^n Mangal Ram came out of the house /ith the Kadra, blood started oozing out |at Laxmfnafh was lying dead near the jury on his neck. In cross-examinatjon, hour, he came to know that Laxmjnath feers informed him that the body of iccused assaulted his son Mangal Ram tcused. ThereTore, as per the evidence (.axminath aljve in the company of the jthe dead body oT Laxminath on ttie way per the settled law jajd down by the |ij alias Bodha and others v: State of Ep02) 8 SCC 45 & Subhash Chand vs. 1 SCC 702, in order toconnect the between the death and tast seen must l>e any possibjiity 6f cbming any third seen together cpupled with other tjie invoivement otthe accused in the pft^ ^Io^ r XI-HC-22 '3^ ^ITETRTZT, ^^i<l< i<o, ?G«3l ^y ww^r^^iieb 3TT^T T(5R? ..^&li^l •^^T" f-M 200 © arr^T^T (<^i?b 3Tlt^T s^^ich laft^T "< circutt'istance As far as the second discussed in the earlier part of the Bursati (PW-1), the accused went-to'i enquiry by Pyrsati that what he Js'co^ replied that he will kiil him today on wfl and Pursati received injuFies cause|: carrying. The evidence of this witr^s Somari (PW-2), wife of Pyrsati, and fp medicai eviden.ee pfDr.M.P. Tiwarl(l| jn question, the accused was carryinb assaulted Pursati. is concerned, as has heen udgment and as per the evidence of the residOntial shop of PuFsati and 6n ncealjng behind his body the accused ijch scuffle,took place between the two by Kadra whtch the accused was ^ss PW-1 has been corroboratetf by irther it has been corroborated by the pW-9). Therefore, at the time of crime Kadra and with the same Kadra'he As far as the third circumstancel in para 12 of bis evidence has stated and the injuries which were found on| been caused with the Kadra, the weap|on As far as the fourth circumstan< stated in hi? evidence that hesaw tha| thehouse ofCheti Bai and injurieswe| pian Ex.P-6, dead body of Laxminat whteh isthe same way on which the towards the house ofthe deceased. that the dead body of Laxminath wa; house, on the road on which dece< Singhwere seen ^oing together. Therefore, in view of the ab( deceased Laxminath was seen afh cbKiId^ Hi^<nl "^ fe<<l <fa^?k ^3?ipOT3H^l is concemed, Dr. S.R. Tandon (PW-8) 9 . ; ..... ./.•, . ; .. • '; •'• '. 1|hathe examined the Kadra in questioh 1the body of the deceased could have inquQstion. l^ |e is eoncerned, Sadhuram (PW-6) has : the bpdy of Laxminath was lying near |"e present on his necte-As per the site h was found near Cheti Baj's hoyse, jiccused and the deceased were going perusal of the site plan Ex.P-6 shows tying at pomt No.2 riear Cheti Bai's ^se9 Laxminath and accused MangaJ tve discussion, it is established that ^e in the eompany of the accused ;. [^^f^ XI-HC-22 s?i^T^r {<'fi?b~ 3?nt?r $b»iich^I^a A -3-sr ^n^PT, ^Tl1^<i<o, 1^<rlt^ll< 3ff^T.X^^ '^'fr.'l^f ^m^ia ^HT^ '^ 200^ 'fN^sr' approxjmatejy one hour before tfte irlc on the body of the deceased could| Kadra which was thrown away possessiGn. The accysed carrying| Pursatj (PW'1) where he attacked when the father of the accused intet assaylted Mangal Ram with the^ Sadhuram (PW-6). Hence, jnvolv^ question is established by the fact t(| in the company of the accused just theaccused-attackecl Pursati & Manfeai was carrying. Therefore, chain of towards the fact that the accused Laxminath. / . From the evidence of prosec|ution possibiiity of invpivement of any thirdj of the foregoing discussion, we are| and jnfjrmity in the judgment of the committjng the murder of Laxminath | on tegal cljnching evidence. under Section 302 pflhe i.P.C. and s| Section is concerned, is dismissed, Rs.100^- frpm Rs.5,000/- and in c^ accused shall further undergo R.t. convtction under Section 307 of.the ^N^iN 'RTR^if °?^S Tfai^K ^3^OT3TT^T lcident and the injuries which were fpund be caused by the weapon in question ?y the accused and W8§ taken into the same Kadra went to the house of 'ursati with the same Kadra, thereafter ^vened he ran a\A^y and on Ihe way he tame Kadra which was wjtnessed by ?ment of the accused in the crime in |at deceased Laxminath was seen alive l^efore the death, immediately thereafter, Ram with the same Kadra which he lclrcumstance is complete which points Iwas the author 'of crime i.e. murder of t, it is establi^hed that there is no person in the crime in question. Ih view of the opjnion that there is no illegajity feriai Court in convicting the accused for |by the accused, and the same is based In the result, the appQ.aI of the |accused/appellant, as far as the offence ^ »|Libstantivesentence awarded under that however, the fine amount is reduced to |ise of d.efault of payment of fine, the fjsr one month. The appeal^as agajnst I.P.C. is atlowed. The convictjbn and [tft^ ^Ra^ XI-HC-78 HS^<AI^TT^ ^Twi^i<4io)«,t?^^<s<o,Riom^ ?.4,.ll^. 3TT^?7 q^P (ljc|^N«£;) ^200® w^^T^rf^rw ^iTW^^Tw^icp Soma ?;?m^R;Hfin3TT^5T (f) sentence awarded under Sectior thereof, the accused is convicted injuries on the body of Pursati and Parties are entitled for certi' 307 of .the I.P.C. are set aside, instead [jnder Section 323 oftheI.P.C.for inflicting he is directed to undergo R.l. for one year. fied copy of this order. Sd/- L.C. Bhadoo Judge cpiqio<n^+ii+toT^'fe^i <<Rii^ix ^srf^HOT^^T Sd/- Dhirendra Mishra Judge