/$ abher s Nam i30 62 ‘ g.~.. m enc ed t ctltlone case and ll wlll 1f legal not p vlon o ould vac ‘Ver wh sh atc of awvllcatl 1'1 far any of .D J passged g n“ ’e hmv er A.,pl%a‘he Court £21W §§réaww8ub Jan fa . m r” uCIAL MAGISTtiATu, Tudgwent or arder ape rmn f receipt 1n c d M's OfflCe g¢/9i “1_ t acmy ' Dl . e L vmpan. elaie COHI't dai 2 $ é ta n $‘ \, W'.‘ _o ,_ e ét o A .‘ ar t P f: a g a r - x pp ea No} m m t? , th . y " JJI _ u tede o . d/ .’ XI-HC-78 mainfm ..cn{§r:.mm,.22a:‘mmw m aéamm méam mam (@3332), mmwma WWW§wW $manaa DIVISION B HON. SHRI DHIREEDRA Mlsg&,JJ Appellant Respondent State of M.P. Shri N.K.Chatterjee, Ieamei co‘unsel for the appellant. Shri U.N.S. Per L.C.Bhadoo, J By this appeal under S ction 374(2) of the Code' of Criminal Procedure the accused/apps" nt has questioned the legality and correctness of the ENCH: HON. S HRI L6. BHADOO & Criminal A2geal No. 233 of 1_9_97 Kalmumi Durjan Vs Deo, {earned G.A. with shri D.K.Gwétre, Ieamed Dy.G.A. for the State. ORALJUDGMENT (21I03I2006) judgment of onviction and order of sentence dated 29.08.1996 passed by Addi' nal Sessions Judge, Jagdalpur in S.T.No.151/96 whereby the le rned Additional Sessions Judge after holding the accused/appellant g ilty for the commission of offence under Sections 302 of the lndian nal Code sentenced him to undergo imprisonment for life. Case of the prosecution, in brief, s that on 10.1 1 .95 at about 6.30 pm. the deceased Kaimumi Tundi was reparing Beedi in the courtyard of his ff m ..Ca:b‘...m.q;...2.a$.‘31 mm amias W mm(W) Iméamféaia nailézrm Man’wgaanaa mw#wm -2 , *mqanéar ' house. Accused reached there the wooden plank and assaulted with the same on the head and temper I region of Kalmumi Tundi as a result of which he died spontaneously. Th crime was witnessed by chiidren of the deceased namely somaru and B dhram and they raised cries on which the wife of deceased namely Kai umi Hidme saw the accused running away holding wood in his hand. he raised the cries and called Keimumi Kuma and appraised him ab . the incident. Thereafter the village Sarpanch Hunga Ram (P.W.-4) intimated about the incident and on the next day the panchayat was c nvened in which the aceusediappellant made extra judicial confession. re rding the commission of the offence by him. P.W.-4 Hunga Ram lodged report P—2 in the police station-Bacheli on 11.11.95 at 6.30 p.m. After re istering the offence. S.H.O. took up the investigation and left for the sce e of occurrence. Site plan P-1 of the place of occurrence was prepare by the Patwari and site plan P-4 was prepared by the Investigating er. After giving notice P-5 to the panchas prepared panchnama P 7 of the body of Katmumi Tundi. The body of Kalmumi Tundi was sent or post mortem examination to Primary Health Centre, Bacheli under 8 where Dr. G. R. Uraon (P.W.-3) conducted the post mortem and e the report P-1 1 and opined that the mode of death was due to com which was due to injury on the head. Blood stained soil and plain soil w re taken ints possession from the place of occurrence uhder P-9. The pon of offence — one piece of burnt wood was taken into possess n under P-10. The‘ ctothes of the accused/appellant were taken int possession under P-1 1. The clothes of the deceased were taken into po4session under P—12. After completion of the investigation the charge sh et was med in the Court of Judicial Magistrate First Class, Dantewa ,who in turn committed the case to ‘ ‘ éa W' o s c . v a Xl—HC-78 mamowaaa) ~ ‘ m‘mafzaanésl __a_. $essions Judge. Jagdalpur from WW§WW *Wanésr r The prosecution accused/appellant examined statement of the accused’was so recorded under Section 313 of the Cr.P.C. in Which he denied the rosecution evidence appearing against him. where the learned Additional Sessions Judge, Jagdalpur received the case on transfer for triai. establish ~the charge against the t witnesses. 0n the other hand Leamed Additional Sessions Ju ge after hearing the counsel for the respective parties convicted an sentenced the accusedgappellant as mentioned in paragraph one of thi judgment. ar“ QMMJitwa in order to e‘ We have heard Shri N.K.Chatt 'ee‘ learned counsel on behalf of the accused/appellant and Shri U.N. .Deo with Shri D.K.Gwalre, Dy. G.A. on behalf of the State. Homicidal death of Kalmumi Tun is not in dispute. As far as the involvement of the a weed/appellant in committing the crime in question is concerned, there is no ocular evidence available in this case as the two child witnesses wh witnessed the crime have not been examined by the prosecution. T us the case rests on the circumstantial evidence i.e. the extra judicial panchayat in the presence of PIW.-4,5,6,7 & 8 and that just after the ce sed saw the accusedlappellant running holding wooden plank in his hand. vr’ incident P.W.-5, wife of the de away from the place of occurrenci g5 h m mm,ma;&mgi masg1ia; mammamz) lién asram I .mmmmésr mma‘wm 4‘- aiwanéa P.W.-4 village Sarpanch Hunga . P.W.-5 Kalmumi Hidme, w‘rfe of the deceased. P‘W.-6 Bugori, P.W.— Kuma Kaimumi and P.W.-8 Kalmumi Chhannu has categorically state that a panchayat was convened in connection with the death of Kalmuini Tundl and in which the accused/appellant was called a d he made extra judicial confession before the 'p'anchayat that he attacked Kalmumi Tundi with the draw the Sulti from his sulfi tree and in the cross examination of these witnesses which makes the evid nce of these witnesses untrustworthy and unreliable. P.W.-5 Kalmumi H dme wife of the deceased had stated in paragraph three of her evidence at on hearing. the cries of her children when she came out, she saw tha the accused was wnning away holding wood in his hand. Therefore from e above evidence of thesowitnesss" ( 1 it is established that she saw the a cused running away from the place of occurrence i.e. from her house wh re her husband was assaulted. wooden plank because he used nothing else has been broug Thus, based on the extra judicia confession made by the accused and that he was seen at the place of rrence while running away by P.W.-5 Kalmumi Hidme,‘ wife of the dece sed, the inVoivement of'me accused in the crime in question is establish beyond reasonable doubt. Learned counsel for the accused] ppeltant argued that from the evidence available on record lt is establ hed that the accused assaulted the deceased without any intentionlto cause his death/& because the deceased used to draw sum from he sum tree of accused which infuriated him, therefore without any inte on, in a heat of passion the accused R m s h u Xl-HC-78 I?) m'm ....Gc.Q.:.Gimg.3.$J3W wawaaiaw) mamw v ' mums/rm “ mmvaam mm#%m *Wanésr -5, assaulted the deceased. Thus, t offence again/st the accused does not travel beyond Section 304-" of the IPC. On the other hand leamed Addi onal Public Prosecutos supported the prosecution case. From the perusal of the FIR (P; vit is evident that on enquiry from the accused by the panchayat as to hy he had assaulted the deceased he made it clear to them that the de eased ‘uSed to draw suld from his sulfi tree on which quarrel started betw en them and he took the wooden plank tying there and assaulted the dece sed with the same. As per the evidence of P.W.'-3 the head of‘the deceased - one rated wound an the mid frontai region in the size of 7cm. x 2cm. deep p to skin; the other injury was sweliing cm. x 3 cm. and on dissection of the head it was found that there was inear fracture in the mid trontal bone in the sizeof 10 om. x 6 cm. ln v’ of the above evidence it is established that there was some quarrel be een the accused and the deceased as the deceased used to draw suiiif m the sulfi tree of the accused and at that moment the accused picked p the wooden lank and assaulted the deceased. .G.R.Uraon there were two iniuries on l e near the right ear in the size of Therefore from the above fact it ould not be inferred that the accused assaulted the deceased with the i tention to cause his death but from the above evidence it can be inferre that white attacking the deceased with the wooden plank, the accused as not having the knowiedge that by it, sh W h i p WWWW CA. . . ma "23$ mam(93ia) aa