m0? f A A .2 03> w; 200% W Divis§on Bench: Hanable Mr. L.C. Bhadoo and Hon’ble Mr. LP: Shanna, JJ. " 29-4-2008 . Mr. Sunil Kumar, couns Iforthe appeuant. Mr. Akhil Mishra, Deput Govt. Advccate for the State/respondent. Heard on l.A.No.1, appli ation for condonation of deiay in fiiing this appeaL As per the Office report there is deiay of 4,791 days in fiiing this appeal. lt has been mention d in'the application that the appellant is aged about 65 years, he has o family member to pursue the case, he is a very poor man and he has n source of income to engage the counsel. He is an illiterate person als and he does not know the practice and procedure of the Court, there ore, he could not file the appeal in time. 3mm (13W) m wW amt mm mam WWW §1%‘2? WK a? affcm 311w APPELLANT: Martin, Slo Hota, (In Jail) aged about 65 years, R/o Village Barpani, P.S. Jashpur Nagar, Distt. Raigarh, Chhattisgarh (Presently confined in District Jaii. Raipur). - Versus — v RESPONDENT: The State 9f Chhattisgarh, Through P.S‘ Jashpur Nagar. {Criminal appeal under S action 374 (2) of the Code of Criminai Procedure} m W ®‘a..$ gi 200K mm (W) mmmm Wm§m The said application is supported by the affidavit of Manju Toppo, daughter of the accused/appell ant, aged about 24 years. For 'the reasons mentioned in the application (i.A.No.1), it is aiiowed. Deiay in filing the ap ea! is condoned. Aiso heard on the questi n of admission. The appeal is admitted or consideration. As the record of the trai Court is availabie, therefore, with the consent of counsel forthe parti s, the appeal is heard for final disposal as the appellant is in detention sin e 1994. Oral judgment dictated o Dals. LC. Bhadoo, J:‘- This appeal is directed again the judgment of conviction and order of sentence dated 315‘ October, 1994 passed by the Additional Sessions Judge, Jashpur Nagar in essions Trial No.145/94, whereby & whereunder learned Additional Sessions Judge after holding the accused/ appeilant guilty for commission of offence under Section 302 of the l.P.C. for committing the murder of is own younger brother namely, Matias, sentenced him to undergo imp sonment for life. Case of the prosecution, in bri f, is that there was some dispute between the accused and his younger rother Matias (since deceased) in respect of a land. The accused wante to construct a house in front of the school building which was being obj cted by the villagers. The accused was XI—HC 78 W m ® (91% W 2008 mm (W) Wmfw‘ax mwm WW .1:wm WWW émimaném younger brother. Therefore, on the fateful day, the accused came out from his house and in the firsi instance, started attacking the deceased with steps, however, Manga Ram (PW-3), son of Sukhdev (PW-2) intervened and separated them. Thereafter, the accused after covering certain distance returned back and after throwing Matias on the ground, in the first instance, pressed his neck and kicked on his chest, thereafter, Martin, the accused/appeliant, as again separated. Matias was not abie to rise and within a period o one hour, he succumbed tc the injuries sustained by him. The matte was reported in the'Poiice Station under merg intimation Ex.P-1 and ba ed on that, the investigating Officer left for the scene of occurrence and prepared site plan EXP-2. After giving notice to the Panchas, he prep red inquest EXP-3 on the body of Matias. Body of Matias Toppo was nt for post-mortem examination to Civil Hospital, Jashpur Nagar, w ere Capt. Dr. D.C. Mahadik (PW-8) conducted post-mortem and o ined that cause of death is syncope due to sudden and excessive haemo hage from the wounds of the spleen, He prepared post-mortem report x.P-4. Dehati Nalishi EX.P-7 was given and the first information report as registered. 3. After completion of investigati n, charge sheet was filed in the Court of Judicial Magistrate, First Cias , Jashpur Nagar, who in turn, committed the case to the Sessions Jud , Raigarh, from where learned Additional Sessions Judge, Jashpur Nag r received the case on transfer for trial. XI—EC—78 l\ Homicidal death of Matias is not in dispute. Moreover, Capt. Dr. D.C. Mahadik (PW-8) has stated in 1is evidence that on 23-5-94 he conducted post-mortem on the body of latias, there were six injuries, spleen was ruptured and on account of r pture 'of spleen there was haemorrhage which was cause of death, the death was homicidal in nature. His report is‘ EXP-4. Above medical vidence is corroborated by the ocular evidence of Sukhdev (PW-2) Mange Ram (PW-3) who have stated that accused Martin attacked the eceased with fists & legs. Therefore, in View of the above medicai an ocular evidence, it is established that the death of Matias was homicidal n nature. WT m®’Q2‘C§ E 200g 311w m (W) awmg‘; . WWW WW1¥WW *mm 4. The prosecution in order to establish charge against the accused, examined ten witnesses. Statement of the accused was recorded under Section 313 of the Cr.P.C. ir which he denied the material appearing against him and stated that he is innocent, the witnesses are Hats and Sukhdev, on account of aniwosity in connection with land, has fatseiy implicated him in the crime, he is innocent. He examined one witness namely, Man’charan Ram (OW-1) in his defence. and sentenced the accused asaforementioned. 6. We have heard Mt. Sunil KJmar, learned counsel on behalf of the appellant and Mr. Akhil Mishra learned Deputy Govt. Advocate on behalf of the State/respondent. ‘ ’ Ocular evidence of Sukhd v (PW-2) & Manga Ram (PW—3) is corroborated by the medicai e idence of Capt. Dr. D.C. Mahadik (PW-E) who conducted post-mortem o the body of Matias and stated that there were as many as six injuries and the spleen was ruptured. In cross- examination 'of these witness , defence has not been able to eiicit any circumstance which discredits he evidence of these witnesses. They are independent witnesses and th y have no animosity or grudge against the accused to implicate hirn in a se case that too in respect of the murder of his own brother. lt has co e in their evidence that the accused was suspecting that his younge brother Matias (since deceased) was instrumental in instigating th villagers notto ailow the accused to construct house, that is why h became angry, that enraged him and he attacked the deceased with le s & fists. Therefore, as far as complicity of l YI-Hc 7s 3% 5 C9 . & 2’63 WT m E 200g 31m? m (W) WWW ammm mmm WW§WW a; afRm anéa As far as compHoity of the accused in the crime in question is concerned, Sukhdev (PW-2) & Manga Ram (PW-3) have categoricaliy stated in their evidence that they saw the accused attacking the deceased with fists 8: iegs, as a result of which the deceased sustained injuries and died instantaneously. Sukhdev (P V—2) has stated in his evidence that even his son Mange Ram (PW-3) i tervened once and separated Martin, the accused/appetiant herein, Mart n ieft the piace, but again he returned and after throwing Matias (since d ceased) on the ground, he again attacked the deceased on chest & oth r parts of the body, as a result of which Matias was not able to rise nd within an hour, he succumbed to the injuries sustained by him. 5 Cvkzog m 200g WW mm (W) WWW WW WW awffvmm ihe accused in the crime ir question is concerned, we do not find any illegaiity or infirmity in the finLding of the trial to that extent. 1G. Learned counsel for the apyeuant argued that the accused is real brother of the deceased and on a Detty matter, he attacked the deceased with legs & fists, therefore, from e above facts it cannot be inferred that the accused attacked the dece sed with intention to cause his death. He further argued that even he doctor has not stated that the injuries sustained by the decease were sufficient in the ordinary Course of nature to cause his death. . On the other hand, lea Deputy Govt. Advocate supported the judgment of the trial Court. 12. Having heard learned cou sel for the parties, we have perused the record. it is admitted fact that the deceased was reat brother of the accused, the accused was angry with him because, the accused was suspecting that his brother s instrumental in instigating the villagers not to aliow him to construct h use and that is why he simpiy attacked the deceased with legs & fists, when Matias felldown, he left the place and Matias died on account of pture of spleen. Therefore, from the above at the accused had attacked the deceased facts it cannot be inferred with intenticn to cause his death. But from the above facts it can be definitely inferred that the a cused had the knowtedge that the manner in which he attacked the dec ased he is likeiy to cause the death of the adeceased. ln the circumst nces, offence against the accused does not h r d (1 78 9‘ U/ WW,W,W 7 WWCV c%.......i .......62/ ............‘E 2068 mm (W) am% travel beyond Section 304 Par1-H of the LP‘C. as such, conviction and sentence imposed upon him by the trial Court under Section 302 of the I.P.C. cannot be sustained. 13‘ In the result, the appeal partiy succeeds. Conviction and sentence imposed upon the accused under Section 302 of the l.P.C. are set aside, the accused‘is acquitted of tie said charge, instead thereof, he is convicted under Section 304 Part-ii of the l.P.C. and sentenced to undergo RJ. for ten years. it ie stated that the accused is in detention l since 1994, therefore, he has aiready completed the sentence awarded to him. The accused be set at liberty forthwith, if not required in any other case. 14, in View of this order i A No 2 stands disposed of > son L.c 353/1000 J r . 3d!” ,_ . gi’ Judge i ’WT.I’.'Shatma ' >, . W, Judge