s.S gl •w ^s ISgj t3 B K fc- •X: oc «£ c«s. •s s ^^ 1 g '^ g •S "5 5 & Ui p bs d ? !e " -B 8 •o §"§'5 '2 'S -3 -S S +.i '•' ^ -w •s » s s s <sj ^ O -^ S 09 '» " i g s S -^ -^ •a g '•»v '^ n "5 fl h i ® •1| g i y ©M t? "^ '^ ^> ^ -y -?rf III1- 'r^^s IC-' w- [ N SS IS' XI-HC-22 T '^i •L^L '2.-'5'; ?^'^TqRTq, t?Til'M<l<«, TiRlTHy SI^I'qil. F;-li.+ 311^1 %tiN^fN •q^^ •i .CS>.A.,.IQSS/^~. ^WSS-^'"n"'-^"~'^/~^ ~SM~ ^raf?T'^Tf 'RTO^rt "^ t^r^t' '^I^R ^ siSm sn^r Divtsion Bench: - Hon'ble Mr. L.G. Bhadoo and Hori'ble Mr. Dhirendra Mishra. 6-1-2006 Mrs.SavteThsari, counsel^orlheappellant. Mr. U.N.S. Deo, AdditionalPublfe Prosecutor with Mr. Alok Bakshi, Govt. Advocate for the State/respoi(dent. Oraljudgmenl. By this criminal appeal tljirough the Superintendent, Centrai Jaii, Ratpur, aGeused/appetlant Gajei Ira has questioned ttie legality of the judgmentof convicUon and order o|fsentenGe dated8"'July,19&2, |Mssed by the AddiSonal Sessions Judge.J^shpumagar, District: Raigarh, in Sessions TriaiNo.119/90, whereby teamec^ accused Balram and aceused/apFleltant Gajendra guilty for the commission of offence undef Sectton 302 {)( undergo imprisonmentTor life. The prosecuBon case, in appeai is UiatSuidiairam (PW-11) Staflon: Farsabahar on 22-6-19901 p.m. he retumed to his house, when he was sitting after taking saying "ii<i<<A<; f-ftwrt aiiui Hi'fi^ii^, her children came to his attacldng her tiusband. On hearin^ saw that in the courtyard the -c^. readenceiand Addjtiona! Sessions Judge after holding the i.P.C. sentenced each <rf them to ^rief, necessary for the di^)osal of ftis Kotwar iodged ttie report Ex.P-10 in Poijce |to the effect that on 2+-6-1990 at about 8 theiJKrfter he was taking rest, at about 10 p.m. |dinner he-heard the voice of Fagnuram f\ at that fime wife of Fagnuram alor^ wi&i imormed thai Balram & Oajendra are ttiis, he went to the house of Batram and fc|ody of Fagnuram was lying, Balram & ® XI-HC—78 sn^isnfiFife ^T 3TT^T »*licti *ii*«ir(h*ii<h '3Sf •^llltll, E?Tll'y<|fi, Fqwi'yy ..<b>.:A.:...(.?5S/.%^. an^WTffi TOIIW ^ifwi sn^i -2_ Gajendra murdered Fagnuram ^ of ttie head of Fagnuram and th^ On receiving this report, No.52/90 under Section 302 proceeded to the scene of occu body Ex.P-6, after givlng notice of Balram Ex.P-1, the axewas based on the memorandum of at his instance under Ex.P-4. blood stained soil from ttie Ex.P-8 was prepared by the for post-mortem examination where Dr. G.S. Paikra (RW-15) death was caused as a result ol deatti was homicidal in nature. Balram and prepared injury re appeltantGajendra and prepared plajce Haifsa tf> After completion of invesi of Judicial Magistrate,First Ctas case to fte Sessions Judge, Rai Judge.Jashpurnagar, received The prosecution in orde persons examined 15 witnesses recorded under Section 313 ct>l'(4(<n<l)l ^)^''^ fs*<1 <^i<-$l< ^sifitH 311^1 nth axe and iron rod. Btood was oozing out •^fter, he Informed the vili^ers. |the Statton House OfRcer registersd Crimo Iread with SesUon 34 of the S.P.C. and 1'rence. He prepared the Panchnama of the tfte Panchas. Based on e memorandum t-ecovered at his instance under Ex.P-2 and (pajendra Ex.P-3, the iron rod was recovered |-te atso t»okinto possession plain soil and of occurrence undsr Ex.P-5. Slte ptan Palwari. The body of Fagnuram was sent the Primary Healm Cena'e, Farsabahar, lconducted post-mortem and oplnad at the comma due to injuries to the brain and the He also examined the injuries <rf accused taort Ex.P-15, and also examined accused/ injury report Ex.P-16. invesfgationi, charge sheet was filed in ths Court s, Jashpumagar, who in faimcommitted the garh from where tearned Additional Sessions case on transfer for trial. tfte r to estaMish charge s^ainst ttie accused Statements of the aceused persons v.'are >f the Cr-P.C. in which they denied the ':^-L: XI-HC-22 gnt^isRi 1?::IRT31T^( ^tHl^ '^^ fc— TS? i-i!i<<i(ri^, tfTii'y'itf, 'feiray (&..A.f^-SSA^ SII^I.'SSTRR tlfel ^T^I^ <^1<?M-iliI'1 W^V\\ •^aifwTsll^T prosecution evidence and stated.tti^t they are innocent and they hav®been fatseiy impiicated in tte crtme. Leamed Additiona! Sessionsl Prosecutor and counsel for flie each of the accused as menfoned in1 Judge after hearing Addifiona! PirtsBc act^used persons convicted and serrtencec! Ipara 1 of the judgment * We have heard Mrs. Savita appeiiant and Mr. U.N.S. Dso, team Alok Batehi, tearned Govt. ndvoeate Leamed counsal for th»apps^ nature of the deaft pf Fagnuram. G.S. Paikra (PW-15), Suldiatram deceased, it is estabiisheci-ttiat th4 nature. Now, coming to the eommitUng the murder of his own accused/appeiiant djd not chaiiengej crime inqu^tion. However.she persons were reat brothers and was being cultivated by the accusec) fateful day, started abusing attacked them and they receh/ed inj| accused Bairam started abusing anej private defence, mey assaufted tti&d 'nvari, toamecf cwinse! Tor the aecused/ id Additional Pubiic Prosecirtor with Mr. w ttie Stete/respondent. |lant dkl not dispute the fact of homicidal 4part from that; from fte evkience of Dr. (?|>W-11) & Atishita (PW-12), wife of the death of Fagnuram was homieidal in involvement brbther ardued thete of the accusedteppellant in Faghuram, teamed counsel fc»rthe the involvement of the accused in tiie ttiat ttie deceased and the acciBed was a dispute regarding land, which persons. Deceased Fagnuram.on ttie 1 S Gajendra, ths accused psrsons, >. Fagnuram came to the hous®.of aSacked them, therefore, in the right of i. Hence, this is a ciear case of injluries tti&tjeceased XI-HC-22 -T5f^(pn?ra, ©Tf1yiid,^rrey 3i1^I'?ff f?iw3rri?[ WlNT^ll^I ..&.A.:..(&3^Z^ sn^i'renw: ^ftCT 4- exceeding the right of private e^ acGused/appeitant does not travel ifence, as such dw offence against the ?eyond SecUon 304Part-iiofme i.P.C. ^ On the ottier hand, teamec) Govt. Advoeate supported ttie jucynient of the trial As far as the invoh/ementl question,Atishila (PW-12), wife o( ftat accused/appellanf Gajsndra a| with axe and ironrod. In wasciaiming the iand of Budhiyaril stated in her cross-examjnation bodies of the aGGused persons Fagnuramwent toassaultthe stated in her evideRce ttat at th^ village, the accused persons carr) Fagnuram came to ftieir house they have murdeTedhim.in view extra judicial confession made (PW-13), the involvement of the a<| established. cross-exbminafion As far as the argument of case of the accused/appellant is c< ttie t.P.C. te concemed, even evidence that she had not seer persons, but Dr. G.S. Paifc-a (PW- appeflant Gajendra, and notreed ir •^rqferiR^prciS 4 ts'z'f ^Slf^IHSfl^l Additional Public Prosecutor and leamed Court. arid accilsed caffle arid bl/ of the accused/appellant in the crime in the ctoceased, has stated in herevidence nd accussd &i!ram^^^sauted her husband she has sfated that her husband I Bai as ^ie was issueiess. She has further |hat she has not seen any mjury on th® tt is incorreet to say that she alona with pereons. Tarsilabai ^>W-13) has also reievant time, she was SarparAh of the to her house and informed her &iat as started quarreiiing wilh ihem, therefore, ^ftheevldenceofAtishJia (PW-12) and me tte accused persons before TarsUabai (cused/app^lant in th®crime in question is learned counsef Tor the appellant Vnstt ttie ^vered under -Exception 2 to Sectton 300 of fc^ugh Atishila (RW-12) has siated in her injuries on fts bddiss pf ths accused -PS) examined accused Ba!ram& accused/ if|juries on their bodies. He prepared injury ^' r7-(^t / XI-HC-22 SB^I'^iT ^iwan^r ^>Tiw ^n?^ 3^^iFIT?PT, ^ftOTS, fawi'yy .•A.,fo-s§/!'(^ 3ii^i •s^iiwdfeg -? reports Ex.P-15 & P-16in respeijt ine evidence of Sukhalram (PW} lodged by him. it is clear that ot|i abusing and saying that he wi| accused Batram. As per the sits| Balram, where the dead body <rf| it is esteblished that deeeasedl started fighting and quarreiling accused persons received injuiles prosecution. From the above persons assaulted tte deceased ofthe injuries of Balram & Oajendra. From 1-11) anci the flrst information report ExP-iO the tetefut night. deceased Fagnuram was kill, thereafter, he went to Uie house <rf I p!an, the incident took plac®in the houss of |Fagnuram was seen by PW-10.. Therefore, Fagnuram vvent to ttie house of Bairam; Bairaro & Gajendra, and in that fight the those have not been expiained by the e^ridence, it te esteblished that fte accused i^ ihe right of private defence. With wotlnd However, the manner in injuries, as many as nine injunes| a result of which deceased Fagni brow <n the size of 3" x %", !ac< wound on the jaw, iacsrated right side of the jaw, incised t t) left parietal region. Therefore, ^ axe & iron rod on the vitai parts which there was a depressed forehead which shows ttiat all weapon pn the vital organ ofthe of Fagnuram. However, as has went to the house of Bairam s| assauited Salrani & Gajendra, itM deceased, but they had exceededttheir ^-^ ^iN?pfrif intRif •?^S 'tfsR^R ^TSiPaHan^i as twhich tte accusect assauited and caused 1 have been caused with axeand iron rod as ^ram received, incised wound on the teft eye trated wound behind the left sar, laceratsd on the teft eye, lacerated wound on th8 ^nd on the right zeugmatic area andon frie ^s many as nineinjurieswere caused with |of the body of ttie deceased, as a resuit 01 Ifracture on the left parjeta! bone on the t?iese injuries were caused wth th®lefta! ^ody with the intention to cause Vke murder Ibeen mentioned above, Fagnuram himaeif s|iarted abusing and chaltenging him; and Irefore, these accused persons aaacksd the l|their rightofpiwate defence. XI-HC-22 ^si^iRTm, .y'dlti're, feroy. &>:.AJ.o^s/l • 3^-iH M.'* snt^i %tiw:at?'ti &T!^I'?OTWHfel -^ qri?pN •qT'Rff 4'feA •a^R?n: ^atiiOTsii^ir Soma !n the circumstances, the ^ase is eavered under Exception 2 to Section 300 of the i.P.G., as such, I.P.C. is made out againstthe acci(sed/ appellant. Hence, the conviction ot the accused/appeltant under Sectioffj !n the resuit, the appeal is awarded to the accused/appetiant aside, instead thereof, the accused/^ppellant Part-t of the I.P.C. and sentenced The accused was in custody during|trial has not been disputed by learned has alreacty serveci out the senten4e. therefor®,he need notto be surrend^red (jiarUy aliowed. Conviction and sentence Mnder Seciion 302 of ttie i.P.C. are set isconwded underSection 304 |to undergo imprisonment for ten years. 1 from23-6-1991to 24-1-2003 which ptdaitionat Public Prosecutor, thereby he As Uie accused/appellant is on bail, andhtsbaiibGndsaredischarged. Sd/- L.C.BHADOO Judge offence under SecUon 304 Part-i of ih& 302ofthe t-P C. cannot be sustained Sd/- Dhirendra Mishra Judge ,';?