BRIJLAL & ANOTHER Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) <JGN>Prashant Kumar Mishra,Anil Kumar Shukla</JGN> <ADV>A.K.Prasad,Arvind Dubey</ADV> <AT>C.R.A. No. 561 of 2005</AT> <SI> <ACT>Code Of Criminal Procedure, 1973</ACT><S>S.374</S> <ACT>Indian Penal Code, 1860</ACT><S>S.302</S><S>S.300</S><S>S.304</S> Criminal Procedure Code, 1973 Sec. 374 Indian Penal Code, 1860 Sec. 302 Murder case - Conviction and sentence - In instant case, appeals assailing the conviction order for murder of deceased - Appreciation of evidence - Quarrelling between parties - Appellant gave only one axe blow on the front side of right shoulder which is not vital part of the body - It is not the story of the prosecution that appellant wanted to cause injury over the head of the deceased but somehow the injury was caused on the shoulder - It is a case where the appellant may had the knowledge that the deceased may die on account of the injury but he had no intention to kill the deceased - It is a case squarely falling under exception IV to Sec. 300 Penal Code and is punishable under Sec. 304-II, Penal Code - Appeal preferred by appellant No. 2 is allowed and his conviction is set aside - He is acquitted of the said charge - Ordered accordingly. [Paras 12, 20 and 21]</SI> <RC>Bangaru Venkata Rao V. State Of Andhra Pradesh,, 2008 9 SCC 707</RC><RCG>REFERRED TO</RCG> <RC>Bivash Chandra Debnath Alias Bivash V. State Of West Bengal,, 2015 11 SCC 283</RC><RCG>REFERRED TO</RCG> <RC>Dashrath Singh V. State Of U.P.,, 2004 7 SCC 408</RC><RCG>REFERRED TO</RCG> <RC>Dilip Kumar Mondal V. State Of West Bengal,, 2015 3 SCC 433</RC><RCG>REFERRED TO</RCG> <RC>Gali Venkataiah V. State Of A.P.,, 2007 14 SCC 475</RC><RCG>REFERRED TO</RCG> <RC>Laxman Singh V. Poonam Singh,, 2004 10 SCC 94</RC><RCG>REFERRED TO</RCG> <RC>Mangesh V. State Of Maharashtra,, 2011 2 SCC 123</RC><RCG>REFERRED TO</RCG> <RC>Pulicherla Nagaraju V. State Of A.P.,, 2006 11 SCC 444</RC><RCG>REFERRED TO</RCG> <RC>Rammi V. State Of M.P.,, 1999) 8 SCC 649</RC><RCG>REFERRED TO</RCG> <RC>Sridhar Bhuyan V. State Of Orissa,, 2004 11 SCC 395</RC><RCG>REFERRED TO</RCG> <RC>State Of H.P. V. Lekh Raj,, 2000 1 SCC 247</RC><RCG>REFERRED TO</RCG> <RC>State Of U.P. V. M.K. Anthony,, 1985 1 SCC 505</RC><RCG>REFERRED TO</RCG> <RC>State, Pulicherla Nagaraju V. State Of A.P.,, 2006 11 SCC 444</RC><RCG>REFERRED TO</RCG> <RC>Thoti Manohar V. State Of Andhra Pradesh,, 2012 7 SCC 723</RC><RCG>REFERRED TO</RCG> <JT> <PARA> <JGN>Prashant Kumar Mishra,Anil Kumar Shukla</JGN> 1.Appellants have assailed the legality and validity of their conviction under Sec. 302 Penal Code and Sec. 302/114 Penal Code respectively, for which they have been sentenced to undergo life imprisonment and to pay a fine of Rs.1000.00. The charge is for committing murder of deceased Birbal at about 4PM on 11-11-02.

(2.) Facts of the case, briefly stated, are that Beerasai, Hirasai and Birbal (deceased) are three brothers. The accused No.1/appellant No.1 Brijlal is the son of Beerasai whereas accused No.4 Hirasai is one amongst the above named three brothers. Accused No.2 Lakhpati and accused No.3 Shesh Ram are the sons of Hirasai. Land belonging to Beerasai was purchased by deceased Birbal in the name of her daughter-in-law PW-7 Mohmati, however, on allegation that Birbal has not paid the entire amount of consideration, Brijlal, S/o Beerasai was claiming that the land still belongs to them.

(3.) On the date and time of incident, deceased Birbal had brought paddy and was dumping the same in the threshing yard (Kothar) established on the disputed land. Brijlal raised objection as to why Birbal is dumping paddy over there, on which Birbal stated that he has already purchased the land and it belongs to him, therefore, he has every right to use the same. Hearing this, appellant Brijlal got enraged and while abusing the deceased he was about to charge on him. Seeing Brijlal coming towards him, deceased Birbal used "Silvas" (a kind of bamboo stick having sharp edges on both ends) to stop Birjlal, due to which Brijlal fell on the ground. Hearing the alarm/shout of Brijlal other accused persons namely appellant No.2 Hirasai, Shesh Ram and Lakhpati rushed to the place and Hirasai exhorted Brijlal to finish Birbal. Brijlal got up, positioned himself and inflicted one axe blow on the front part of right shoulder of deceased Birbal, on which he fell down and started bleeding profusely. The incident was said to be witnessed by PW-2 Fulbasiya, PW-3 Naphulan Bibi, PW-7 Mohamati, PW-9 Sadir Ali, PW-10 Ishhaq Ali and PW-11 Jabir Ali. While PW-2 Fulbasiya is the wife of deceased and PW-7 Mohamati is daughter-in-law of the deceased, the other eyewitnesses are the neighbors of the deceased.