CF0000062421 ,,ancU^byfc^Cou,]^ISer.c.Co^ne. OivisioR Bench (Crimtnat) Ffq? ?TT^fr?r r?;:Qf^ 3SET '^n'qTPpT, 5@rjqT —^ 3FltFT 3FTRH CTT^T- 574 i2| ^P-S 9~^TT Trf^TT "f^TftRPT SThT ^^nT- '^.33^ /i999 rTTTTT ^^ q^ ^T?n~ ITT^ >s. ^/>. 3^50 y .^ ^Tl^T- X^ f^" I:?^Tifr tn^T ^ 'J^ ^ ' ^ ^ • : % ^'9?T^rr- srr^TT, fNpir- ^m-gT %5TO 3iqt?TT?ff ^ ^t t ! q:^9^ %^T ^ ^f^:^ << ^ x T^T- ?^?T§T TDyQ AcA& ,^ — T^Tiff w^ ^ XI-HC-78 ^l^ldl sb*<«h 3^T ^TFrraw, ^Tn^^i^, f^cni<M^< ..<;^ft..^.°Q?.23J A^•^ t?T^5<cb (^1 3T1^T^T^i<+) cT8rT3T1^T$h^li4) \v ^RTT^R^cTW^T DIVISION BENCH*: - <=hi^f<n<nTi HI^^T^ tec^t <^i^i< ^3Tf^f3:[T^?T HON'BLE MR. L.C. BHADOO Al< HON'BLE MR. V.K. SHRIVASTAVA. JJ. ^ 5/9/2006 Smt. Kiran Jain, counsel for|the appellant. Shri P.K. Verma, Additional Panel Lawyer for the State/respon| Oral judgmentdictated on £] PER L.C. BHADOO. J. Public Prosecutor with Shri Akhil Mishra, dent. 'a/s. .t This appeal is directed agai|nst the judgment of conviction and order of sentence dated 8-7-99 passed Jagdalpur in S.T.No.47/99 wheretty learned Additional Sessions Judge after convicting the accused/appellan^ Section 302 of the I.P.C. for c<\ sentenced him to undergo impriso| in default of payment of fine to furtjier undergo R.l. for one year. The case of the prosecutjorl Q p.m. in the night of 2-12-98 ac<| after takjng his meat, at that tim^ assaulting the accused with an a)| her head, as a result of which th< succumbed to the injury. The matter was reported Bhansi, on which F.I.R. (Ex.-P/1) charge sheet was filed in the Cou by the 2 Additional Sessions Judge, for the commjssion of offence under mmitting murder of his wife Tamodeve, iment for iife and to pay a fine of Rs.SOO/-, i, in brief, js that on the fateful day at about ;used/appellant Tamo Budru was sleeping ', deceased Tamodeve came and started :e saying that as to why he has eaten her food, on which the accused snatehed the axe and assaulted the deceased on » deceased sustained fatal injury and she by RA/-1 Sukman to the Police Station was regjstered. After usual investigatjon, \t of Chief Judicial Magistrate, Dantewada, P.T.O. - \ XI-HC-78 v3^[ •^l<4l<rt<l, y>Tflwi<o, fcldiy^ +11*1011 ShHlch ^ 200 311^1 M5|cb (^qi^q^&T) 3TT^T^)T^i<+) <cTSTT W^T ^TW ^' ^TTW^Tsn^r —^ <^l^?^l41-l HHT^Jt'^ fe^t <Rl^l< ^) 3Tf^R'3TT^?T who in turn committed the case to |the Sessions Judge, Jagdalpur from where learned 2 AdditJonal Sessions Ju|dge received the case on transfer for trial. The prosecution in order to| examined 6 witnesses. Statem^nt of the accused was recorded under Sectlon 313 of the Cr.P.C. in which he denied the material appearing against him in the prosecution evidence accused and Additional Public accused as mentioned in para-1 ol We have heard learned coi^nsel for the parties. Learned counsel for the judicial confession as also medi establish the charge against the accused and stated that his wife Tamodeve was attacking him with an axe and she| received the injury because she felt down. Learned Additional Sessions Juc|ge after hearing learned counsel for the Prosecutor convicted and sentenced the this judgment. accused/appellant has not disputed the homicidal death of deceased Tam|odeve. Apart from that, from the evidence of PW-3 Dasru and PW-4 Kamar^m before whom the accused made extra ;al evidence of PW-5 Dr. B.K. Tirki, it is established thatthe death ofdece^sed Tamodeve was homicidal in nature. As far as involvement of th & accused/appellant in crime in question is concerned, that has also not b^en disputed by learned counsel for the accused/appellant. PW-1 Sukma|n, who js the brother of the accused, has stated that the accused came|to his house and made extra judicial confession before him that he has| murdered his wife. Thereafter, Panchayat was convened and before the Ipanchayat also the accused made extra judldal confession regarding corr|mission of offence. The above evidence has been corroborated by the ev| witness has been declared hostilel Prosecutor he has categorically s| idence of PW-3 Dasru. Even though this but in the cross-examination by the Public tated that the accused made extra judicial confession before him that as Nis wife Tamodeve (since deceased) was P.T.O. XI-HC-78 3T1^7T^T^i4) cTSTTW^Tsh^i^ ^' c~ 3^T ^l l^l^^, ^Tfl^Ko, f^crtW^ +11+1C11 ShHlch ^200 3^|^1 M?<ch (^cit^^&T) ^cfT^R: ^f?cT 3TT^?T thle proseci|ition quarrelling with him on the groun^ and she assaulted him with axej same axe, as a result of whi<|;h corrpborated the above evidenc^ judicial confession before the Part< with axe. PW-5 Dr. B.K. Tirki h^ head of the deceased, as a which was fatal and sufficient to of above witnesses, it is deceased, as a result of whjch succumbed to the injury. Hence Learned counsel for evidence and case of the under Section 302 of the l.P.C.) appellant for the reason that t^< sleeping, at that time, the dece^ saying that &s to why he has accused, he stood up and snateh|e< quarrel he assaulted the deceas covered under Exception IV of Se(s On the other hand, judgment ofthe trial Court. Having heard learned evidence. PW-1 Sukman has deceased Tamodeve attacked axe. PW-3 Dasru before whom in the cross-examination he has resultlof which there estslblished hirh (=hi^?<n41Ti HpraY ^t' te^ <RI<^K ^)3Tf^TOT^T that as to why he has consumed her food therefore, he attacked the deceased with she died. PW-4 Kamaram has also and stated that the accused made extra (chayat that he has assautted the deceased is also stated that there was injury on the was fracture of parietal bone ^ause death. Therefore, from the evidence that the accused assaulted the |she received fatal injury on the head and ihvolvement ofthe accused is established. •|e accused/appellant submitted that if the is taken as it is, even then the offence was not made out against the accused/ }e accused after consuming his meal was jised came with an axe and attacked him consumed her food, which enraged the h|ed the axe alt of a sudden and in a sudden ted, therefore, the case of the accused is 3btion300ofthel.P.C.. leartjied counsel for the State supported the couhsel sNed for the parties, we have perused the that the accused came and said that >, therefore, he attacked the deceased with accused made extra judicial confession, stated that the accused informed him that P.T.O. the XI-HC-78 (^"-•S?- ^P'^ 3^ ^l^Krt^, ^TTl^^Ko, Rldiy^< +11H^I S»l*11<!t» ^ 200 311^1 M5ich (^cii^q^T) W^T^T^icb cTSTT^TI^T?b^i<=b ^ ?^<TTW ^rf?cT 3Ty^?T •A- <]&>^ ^v- Kamaram. The evidence of abo' medical evidence. Apart from tha1 +Nld41-1 ini^fr'Tfte^^RH: ^3Tf^TOT^T when he was steeping the deceas^d came with axe and attacked him saylng that as to why he has consumed h^r food, on which he snatched the axe and afl of a sudden attacked the dec^ased. Similar is the evidence of PW-4 IQ witnesses stands corroborated by the , PW-6 T.R. Nagvanshi (1.0.) in para-4 of his evidence has stated that he hajd arrested the accused on 12-4-98 and on examination of his body, he found |that there was an injury on eyebrow of the lefl: eye and, therefore, he sent th|e accused for medical examination under Ex.-P/16. Perusal of Ex.-P/16 shoiws that there was injury on eyebrow of the accused. Therefore; from the ^vidence of prosecution witnesses, it is established that in the first inst? assaulted the accused, which enra assaulted the deceased. In thi| preparation. The accused assaultj sudden, in a heat of passion and advantage or acted in a cruel or ince, the deceased came with axe and ged the accused, he snatehed the axe and i case, there was no pre-meditation or 3d the deceased in a sudden fight, all of a ipon sudden quarrel, without taking undue ^inusual manner, as such, the case of the accused is covered under Exc^ption IV of Section 300 of the t.P.C., therefore. finding of the trial Court of the I.P.C. cannot be sustained. Jn the result, the appeal sentence imposed upon the acc convicting the accused under Section 302 partly succeeds. The conviction and jsed/appellant under Section 302 of the I.P.C. are set aside, instead thet'eof, he is convicted under Section 304 Part-11 of the I.P.C. and sentencec^ to undergo R.l. for 7 years. The accused is in custody since 4-12-98 ther^by he has already undergohe 7 years' sentence, as such he be set at lij|>erty forthwith, if not required inany^ther case. Sd/- L.C, Bhadoo Judge Sd/- V.K. Shrivatava Judge ^v ,fy