.>r^"-''a Sf^l W R-fi'* ^\sf\ 3n^[ sf)Hi<»> 7531 •^Wflf, Vn!\V'16, fqOI+fy tffffvW (b^l* ..&.......&=. "fl^ 200 an^?r 'wy; (ijci(.i«i<iti) ¥OTW(lft?i3TI^i[ <fiT^fcf*i1-1 'Hffl^f tf^'fe^ <r<n^i< ^; SlftPT 3Tf^¥I APPELLANT: \iii uJai!) RESPONDENT: {Criminal appeal under Division Bench: Madvi Sukdo, S/o Ramu Madia, Aged about 30 years, Occupation- Labour, R/o Village- Bade Kilepal, Dulepara, P.S. Kodenar, District Baster (Jagdaipur). /ersus - State of Chhattisgarh, ThroughS.H.O. P.S. Kodenar, District Baster (Jagdalpur) Section 374 (2) ofthe Cr.P.C.} Hon'bie Mr. Dhirendra Mishra Hon'ble Mr. T.P. Sharma. JJ. 7-2-2008 artd Mr. K.K. Singh, counsel for| Mr. Ashish Shukla.Additional respondent. (:he appetlant. Public Prosecutor for the State/ Oral judgment dlctated on t}ais. Dhirendra IVIishra. J: - The appellant has prefei('ed judgment of conviction and order passed by the Sessions Judge, No.345/2001, whereby learned MadviSukdo under Section 302 of Madvi Podiye, and sentenced h| this criminal appeal against the i^f sentence dated 20th November, 2001, |Bastar at Jagdalpur in Sessions Trial S^ssions Judge has convicted appellant 4f the I.P.C. for causing homicidal death jm with life imprisonment. XI-HC—78 sn^r ?ii (<-ii°h vn an^i *ii+ -SvS! "!<|i<|^, ©Tfly'IS,ls)<?iiy^< t<l*<dl *Nlcb .^.:.M^. "WI, 200 an^r irag; (4<ifl«<<a) WfflW ^lfOT 311^1 -•2-- g4>ne dec^ased) Ma<Bvi Case of the prosecution, 1(1 noon, Madvi Mitku (PW-1) had his wife Madvi Podiye (since garden, at that time, her son S(J present. Accused/appellant MadviButki (PW-3). Madvi Podiijt beat his wife, whereupon the apj|> Madvi Podiye and assaulted her Podiye fel! unconscious in thext|i Madvi Podiye.rushed to his fath^i the incident to him. Madvi Mitku t< by the time she reached there, s| day, a Panchayat was convenec| lodged at about 2.40 p.m. on 24-( over the dead body of the deceas( was prepared by the Investigatin^ deceased was sent for autopsy where Dr. T.S. Nag (PW-6) condu) Ex.P-9A. On the memorandum offence axe and blood stained Gi Ex.P-5. After completing the inve Court of Judicial Magistrate, First the case to the Court of Sessions During trial, the ' Thereafter, statement ofthe accusl evidence appearing against him ^y prosecupon 4»l-i<T<'FiN'RTT1^f ^f,fel3t <F>l+$t< '^3ffilT31T^I brief, is that on 23-6-2001 at about12 to his field to work. At about 3 p.m. was plucking leaves in her kitchen ikhram, aged about 7 years, was also |lvi Sukdo was quarreling with his wife asked Madvi Sukdo not to quarrel and ^ellant left his wife Madvi Butki, went to |on temporal region with an axe. Madvi leld (Baadi). Sukhram (FW-2), son of Madvi Mitku and communicated about iok Madvi Podiye in his house, however, le was atready dead. On the following in the vil!age. Report of Ex.P-1 was 3-2001 by Madvi Mttku (PW-1). Inquest >^d was prepared vide Ex.P-2. Site pian Officer vide Ex.P-3. Dead body of the t() Primary Health Centre, Bade Kilepal, j|;ted post-mortem and gave his report of |of Ex.P-4 of the appellant, weaipon of (mcha were taken into possession vide (stigation, chargesheet was filed in the ;tass, Jagdatpur, who in turn committed |udge. examined six witnesses in all. id was recorded in which he denied the |in the prosecution case and pleaded XI-HC—78 'FESf "ill'MI^, (SlTfl'M'Ko, isl<'''l'My l^WVSf *MI* .(j?...d.:...S: Wl. 200 an^?r xigq; (ijcif-jaiijtt) l^!^^3d '^f" sn^i ?n R;-)i<*> '^8TT STT^T sh*l|ch •*iiid'i)-< ^inaf 'it fezt <[<i<si< ^; aiRn sii^f innocence and false implication. |-!e further pleaded that on the time and date of incident he had gone to ^ther locality for earning his livelihood. The trial Court after hearing coun^el for respectjve parties, convicted and sentenced the appellant as mentio^ied in paragraph 1 ofthis judgment. The homicidat death of IV|advi Podiye is not in dispute. Even otherwise, from the statement of Slukhram (PW-2), as also the evidence of Dr. T.S. Nag (PW-6), who has cor| the deceased and has noticed-pn^ 2 %" above rightear, and furthe>| bone near right temporal region w ahd has opined cause of death a same was homicidat in nature, jducted post-mortem over the person of lacerated wound of size 2 %" x 1"x 5", ^obseroed on internal examinatlon that tas fractured, brain membrane was cut s|s coma due to injuries over head, the |homicidal death of Madvi Podiye is established. Learned counsel for the a^peltant submits ttiat conviction of the appellant is based on the statem^nt of a child witness Sukhram (PW-2) whose age has been assessed by (he trial Court as five years. The above witness in reply to a question in cr()ss-examination that he is deposing as per tutoring by his father, has adn'ptted the suggestion andstated that he is deposing as told by his father. |t was further argued that Madvi Butki, who is wife of the appellant, is not| has deposed about the incident on | Madvi Mitku, husband ofthe deceal eyewitness to the incident. It is furt| not believed the seizure of weaponl as the same have been recovered opinion regarding presence of bioo^l on the above articles. an eyewitness to the incident and she the basis of information given to her by sed. Madvi Mitku (PW-l)isalso notan |ier argued that even the trial Court has of offence and blood stained Gamcha, From open place and there is no expert fSS XI-HG—78 sn^yw R-ti'sh '^TSff 3?n^T ^+iiqi »!8 T5? •^WW^, W^WI'i, (q01+fy 'WTCW *^l<=b .&..A:. "WI. 200 M^?T'I'R; C^pf^??) TCITWdtel W^T -<)- bden On the other hand, leamed) the judgment ofthe trial Court. We have heard leamed cit> record of the trial Court, as alsol (PW-1) who lodged the reportof E|> 1 whereby a named report has assaulted the deceased with an witness has stated in his evictpnct the field where he was working an< was plucking leaves in the field, a< assaulted his mother by axe. Thereafter, he returned to his hou) that his wife was lying dead and s| right temporal region. A Panchay^ said Panchayat, even the wife of appeilant did not come to the P^ Butki informed that appellant thereafter, they went to lodge the r( Sukhram (PW-2) is a child \( some preliminary questions to tej child understands the questions at statement was recorded without at categorically stated in his evidei| piucking leaves with his mother, axe and assaulted his mother wittt had witnessed the assault, at ths ^i<iI<n41'lltilRTf '^,feTst' <F*(^K ^aifinsii^r Additional Public Prosecutor supported >unsel for the parties and perused the |the impugned judgment. Madvi Mitku (.P-1 has proved the document of Ex.P- i^en lodged against the appellant that he axe on her right temporal region. This that his son Sukhram came to him in informed that his mother Madvi Podive that time Madvi Sukdo came there and |Madvi Podiye is lying in the Baadi. se along with his son Sukhram and saw hadsustained injury of axe over her }t was convened iri'the village and in the appetlant was present, however, the (nchayat and in the Panchayat, Madvi i()vi Sukdo has killed Madvi Podiye and r^portwith the dead body. 1/itness. The trial Court after putting hjm tt his understanding recorded that the |d answers the same and thereafter, his atfministration of oath. This witness has tce that his mother is dead, he was <t that time, Madvi Sukdo came with an the axe over her temporal reglon. He jt time, he was alone with hls mother. stie ttie Madvi i 11 .^.Sj XI-HC—78 'FSSI -^W^>^, s>Tf1«'ie, (q^wy *<l*4ctl **11* 'V^ 200 an^r IRSF (ijgf^^r) sn^i js< ft-ii.'ti ff1T 31R^T *t)l<* Sfes., 'reiiwaftg sn^i S' mother instrilcted Bittki redorded After the incident, he went to irlf incident, and because of the sfei examination, he has stuck to hy sister was alone in the home, h4 and said that he was with his is making the statement as instri)cl asked him what he has to speak.] come and intimate his Masa & distance. On being asked aboub< his home, he answered that it fs other questions put by the cro{ stated that his stetement was immediately thereafter, and has he djd not witness the incident an< ff we scrutinize the abov< background of the fact that his statement of his father Madvi Mit wife of the appelfant namely, Madl on the date of incident her husbai with her, atthattime, the deceas^< son was afso present with her anc| husband as to why he is quarrel Madvi Podiye by an axe over admisston to the last questior| examination that he is deposir^ consequence. In our considered helr <*wi<'l<il"< IIKdf li.fe^ <("tt<;l< ^sifiiHsn^T fonn his father and narratsd about the ilssault his mother is dead. In cross- ctaim and has stated that his younger has denied that he was with his sister r. He has categorically denied that he by his father and further his father On further question that why he did not ittki, he answered that their house is at a (he distance of the place of incident from at a distant place. He also answered is-examination intelligentiy and further on the next day and Police came (^tegorically denied the suggestion that insisted that he had seen the incident. evidence of Sukhram (PW-2) in the ^tatement is duly corroborated from the q<u (PW-1) as atso the statement of the |ri Butki (PW-3),who has also stated that |d, the present appellant, was quarreling ^d was ptucking leaves in her Baadi, her deceased Madvi Podiye had asked her |ng, whereupon her husband assaulted right temporal region, the inadvertent put to Sukhram (PW-2) in cross- r^ as asked by his father, is of no (spinion the version of Sukhram inspires isa I-HC—78 ^.s.i-'1-"-"-'^^. •^•'"•wa^.s'^ 7S3! '<<!<< |<?»<1, (STn'y'KS, KlrtlUy i ^, i, y / 'atiBffiS-S-'- 31)^1 ?iT R-li* W Sf^[ sb^i* !^i^^--S%w^£. W^v{\ **<!* "^ 200 an^r iraq; CyFl»<<tf) TCITW ^iter fli^r _ confidence and he is the witn^s; appettant has corroborated the extent, though she is not an e^i deposed about the background ii|i the basis of aforesaid analysis, M^< prosecution has established the| reasonable doubts. At this stage, teamed alleged offence was committed b^t on the spur of the moment when pretext, when the deceased inte^ quarrel with his wife, that enragep went to the deceased and gave Therefore, intention ofthe Podiye cannot be inferred, thougll giving to the deceased may Above argument advancec| born out from the facts and cir< available on record. Accordingly, we partly allov] appellant under Section 302 imprisonment are set aside. The instead, he is convicted under sentenced to undergo R.l. for sev« the period already undergone by intelvened appellafit to cause|h?r ^114l<flii1'1 TTPT?ff '£f,'fel3t<[<q-<^l< ^; siRn 3)i^i itn^ss of the incident. Even wife of the sjtatement of Sukhram (PW-2) to a great I'ewtness to this incident, but she has which the offence was committed. On je are of the considered opinion that the case agalnst the appellant beyond all coi|nsel for the appellant submite that the the appellant without any premeditation leand hiswife were quarreling on some and asked the appellant not to the appellant, as a result of which he ^nly one blow by an axe over her head. cause the death of deceased Madvi knowledge that the assault which he is death can be tnferred. by leamed counsel for the appellant is tumstances of the case and evidenee I/ this criminal appeal. Conviction of the bf the I.P.C. and sentence of life ^ppellant is acquitted of the said charge, ISection 304 Part-11 of the I.P.C. and ^n years. He will be entitted for set off of Km. Sd/- T.P. S'narma Judge ^>0~l'v\S\