w IHIIIIIIIIIIIHIIIIHIHIIIIIIIII 4589 DMs‘ion Eanch sci IN THE HIGH CCURT OF JUDICA’I‘URE AT JABALPUR,(M.P.) CRIMINAL APPEAL No. \H 1'7 OF 2000 APPELLANT ' KawaSjK Lakhamon of ShrJ. Ecti/murlya, IN JAIL) aged about 60 years, r/o Sautna’r, Police Station Tongpal,Dlstr1ct' Dantewara ,(My5 ) 7 State of Madhya Praaesh thw’ugh Pollce statlon Tongpal,Dlstr1ct: Dantewara , (M.P a ) PESPONDENT Vf CRIMINAL APPEAL UNDER SECTIGN 374(2) ’OF THE CODE OF CRIMZENAL yEEEDURE .. Agalnst the conviction and sentence Daqsed by IIé/d A S.J Jagdalour,Bastar,(A P )(Learned Shrl Yog/esh Nathvr) I in Sessions Trial No. 6/200g—Stete Vs. a'xrasl Lakha. SENLENgF; t ‘ y” O/U/s, 302 of 1.P.C. Life imprisonment with fine of RsASG0/—, ‘V In default of fine ._l year R‘I. x CONVICTION “’eqgti ‘ h ( v ‘ Y XI—HC—78 WW,WW W Wm oG?.'.f.\. . . £1 . W 200© Wm<W> égmm WW§MW l -mmu%am Division Bench: — on'ble Mr L c shadoo A C H J Hon He Mr sum! Kumar Smha J 2 2 2007 Mr RK Jam counsel for fhe ppeHam’ Mr M P S Bha‘ha Panel Lawye for fhe STafe/r‘esponden'r V J. Oral Judgmen’r chcfafed on D Per LC. Bhadoo, Ag.C.J.: - £ This appeal is‘direcfed agains 'rhe judgmem‘ of convicfion and order of sen+ence dafed 28-3-2000 passe by fhe 2“ Addifional Sessions Judge, Jag§aipur, in Sessions' Trial No‘ 6/2000, wherehy Iearned Addifional Seééions Judge affer holding fhe ac used/appel!an+ guil'rv for commission of ' offence under Sec‘hon 302 of 1‘ e IPC senfenced him To undergo Imprisonmen'r for hfe and To pay a fl e of Rs 500/— m defauH of paymenf of fme f0 fur‘rher undergo R I for one ear The case of The prosecuhon 1s fha‘r on 30-11—1999 a? about 6 p m accused/appeHanT Kawasi Lakha a‘H’ cked hls elder brofher namely, Kawasl Burka will-1 an mean his head & ches and fhereby commi‘r‘led ‘l'he murder of Kawasi Burka. The incident was wif essed by Kawasi Sukda Muriya, nephew of fhe deceased who lodged fhe re orf in Police sia‘l'ion: Tongpal on 1-12~ 1999, on which offence under secfio 302 of fhe IP‘C. was regisi'ered. The lnvesfigai‘ing Officer offer regisf ring fhe case left for The scene of occurrence and prepared inquesf Ex. —4 on fhe body of Kawasi Burke. While 'I in police cusfody'. fhe accused gav memorandum EXP—5, in pursuance of P.T.O. G! a . XI—HC-78 § X X Waa‘rféqw WWW WW,W1§,W WW 111 200a WW(W) ’ WW£fWW maxmam ’1 ' %31f?m341%¥r k?! fhaf, axei fhe weapon of fhe offence, was seized under Ex.P-6. The Invesfigafing Officer also Seized plain soil and bioodsfained soi! from ‘rhe plafe of occurrence under EXP—7. The body of Kawasi Bur’ka was sen? for posf-morfem examindion to Primary Heah‘h CeMre, Tongpal, where Dr. L.L. Dhonkar conducfed posf—morfem cad prepared the posf-morfem repor‘r (EXP-1) in which he opined fhaf ‘ hemorrhage caused by fafai head na‘iure. @ffer completion of invesfiga rion, charge sheef was filed in fhe Cour? of Judicial Magisfrafe, Firs? Class, Sukma, who in iurn commif'red fhe case To fhe Sessions Judge, Jagdalpur, from where learned 2"” Addi‘iional Sessions Judge, Jagdalpur, received The prosecu'rion in order fo establish charge againsf the accused examined six wi‘inesses. 5fa‘i‘emer ch fhe accused denied The maferiai appearing agains? him in prosecu‘i-ion' vidence and sfa‘ied +ha1' he is innocent he has been falsely implicafed in The rime. Learned Addiiional Sessio Judge offer hearing counsel for respecfive parfies and perusal of 1‘ e record, convicfed and senfenced The accused as aforementioned. We have heard Mr. R.l<. Ja Mr. MRS. Bha‘ria, learned Panel Mr. R.l<. Jain has nof dispufe 'i‘he homicidal deafh of Kawasi Burke. Moreover, Dr. L.L. Dhankar (PW-1) as si'a'i’ed in his evidence fhai on 2'“ "he cause of deafh was due fobrain injury and fhe dea’fh was homicide! in fhe case on fransfer for frial. f of fhe accused was recorded under Sec‘i-ion 313 of ihe Cr.P.C. in w learned counsel for fhe appellan‘r and r on behaif of fhe Siam/respondent l P.T.o. v h i n i L , e ‘ I—HC—78 WW‘ WW,WW,W ‘ .®.%.(§'2.:7 o ..~ E 200 O WW(W) wawii'am k 3" December, 1999 he conducfed pos‘r- noficéd four injuries on ‘rhe body ( wound: on #he lef‘i' parieTai region, a and gone ‘benea‘th #he injury was ragfured. There was iacer-a‘red wound above fhe righ‘l‘ eye and anofher in On account of The injuries on head, fraci'ur'ed inio pieces and fhe dea‘rh above evidence, i? is es'I-abiished ‘a homicidal in nai'ur'e. As for as invoivemen‘i of ‘I'he accused/appeHanf in 'ihe crime in quesiion is concerned: ‘The prosecL'rion has fried ‘l'o es‘iabiish ihe crime based on fhe evidence of Kawasi WWIEEQ‘TWR %a1%nan%w 'nor'fem on fhe body of Kawasi Burka and )f Kawasi Burka. There was an incised ofher incised woUnd on ‘rhe righa‘ cheek a erafed wound on leff side of The chest parie‘iai bone and zygoma'l‘ic bone were was homicidal in naiure. In View of fhe fhaf fhe deafh of Kawasi Burke was .Sukda (PW~2) as also fhe evidence of Madkami Bideo (PW-3). Kawasi Su <da (PW—2) in examina‘l‘ion-in-chief has sfaied fhai' he saw fhe accused aimcking his uncle wi‘ih an axe, whereas in para 3 of his cross—examinafion, he food ‘i-o Kawasi Burka in his room, ih re was darkness, after burning fire he saw fhai- ihere were injuries on i'he head of Burka, blood was oozing ouf of i-he injuries, none was presen‘r fher , he immediately re'l'urned io his house, informed his wife, ihereaffer, a me fing was convened and in fha‘r meeiing, The accused made ex‘rra judicial con ession. Therefore, his evidence in ihe examina‘iion—in—chief Thai he wii'ne sed i'he crime in quesfion while ihe accused was smacking his uncle, sia s demolished as fhis wifnesses himself in ihe cross-examina'iion has si'ai‘e fhaf when he wen? in Kofhor, Kawasi Burka (his uncle) was iying in injur d and dead condiiion. Therefore, The i l l i i s has s‘iai‘ed fhaf when he wem i-o serve \ P.T.O. XI—HC—78 Hw,m,W mm on........:.. CD 1% / §L27 \ zoom WW(W) F‘ E i‘ L/ .—‘ prosecu‘rion has failed fa es'rabiish ' quasi-ion while fhe accused was affac As far as The exfr'a Judicia! (PW-2) & Mudkami Bideo (PW-3) is Kawasi Sukda (PW-2) has sfafed 1'! exfrecjgdicial confession i'ha'r as Kowasi Burke was prac‘i‘icing wi‘i‘chcrafi' and mT is why he commiTTed The murder of z cross~examina+ion paras 5 & 6, he has 1 Thursday, The Panchayai‘ was convened The Police puT pressure only Then The sion. Mcdkami Bideo (PW-3) has sTaTed made exTra judicial confession ThaT he 1. In cross-examinafion para 2, he has The PanchayaT. In examinaTion-in-chief, : in fronT of The villagers enquired from TaTed ThoT he commiTTed The murder of 1dicial confession Theory also sTands (PW-2), nephew of The deceased, has sTaTed ThaT The PonchaxaT was convened in fronT of The Police and in ThaT, on occounT of pressure of The Poli confession. T In view of The above, The ex of The Police l i i x i T 9 i mamm ,wmm WW§WW %2Af%naa1%2T 'hm' ‘rhis wifness wifnessed the crime in king Kawasi Burka. confession made before Kawasi Sukda concerned, in The examinad'ion-in—chief 1a? in The Panchaya‘l' fhe accused made on accouni' of fhaf his wife died, fl Burka by affacking wiih axe. Bui ii sfa'i'ed Thai offer ‘i'Fie Police came 01 and ii' is correcf i0 say +ha1- when accused made exfra judicial confes: ‘rhaf in The PanchayaT, The accused has commiTTed The murder of Burk aiso sTaTed ThaT The Police convened he has sTaTed ThaT The Police peopk The accused, Then The accused has a Burkal Therefore, The exi'ra jl demolished because Kawasi Sukda rr-a Judicial confession made in presence cannoT be held To be :e, The accused made exTr-a judicial admissible. Were-fore, The prosecuTion P.T.O. XI—HC—78 WW a1 20049 W-W(W> mam mmm mmmm 9 " has faiied to esfcblish fhaf fhe a: ques+ion In ‘l'he circumstances, co accdsed/appeiian? canno? be susfaim: In fhe resuh‘, fhe appeal succ of fhe appellanf under Sad-ion 302 him ‘under “rhaf Secfion are sef aside. The accused is acquii'i'ed of fhesaid charg‘e.’ He is in defention, fherefor , he be sef ai- iiber‘ry for‘rhwii'h, if he is noi required in any ofher case. s Sdl- ‘ Acting Chief Justice WW§WW éawm 0i ~ ‘ v :cused was The aufhor of The crime in wic‘iion and 'seni'ence imposed upon The d. eeds and +he same is allowed. Convicfion of fhe I.P.C. and sem‘ence imposed upon Soma i f Sd/— SUNIL KUMAR SINHA‘ b Judge r.r..rr. 7 J P.T.O. EW,W,W