WW, §$W aW amwm mmm WWW'a'w ammmm VSodi Pandu, Son of Hunga Muriya, aged 44 years, R/o Viliage Korra, P.S. Gadiras, District Bastar, MP. (now C.G.) <1: APPELLANT: (In Jan) RESPONDENT: Division Bench: - Hon’ble Shri L.C. Bhadoo & Hon’bie Shri T.P. Sharma, JJ. 31-3-2008:- Shri Akhn Miéhra, Deputy ovt. Advocate for the State/respondent. Oral judgment dictated on Dais L.C. Bhadoo, J. Today this appeal is iiste id for admission. As the accused is in State of Madhya Pradesh (now Chhattisgarh), Through: incharge P. S- Gadiras, District Bastar, Madhya Pradesh (now Chhattisgarh) detention since 12-9-93, therefore, with the consent of iearned counsel for the parties, the appeai is heard fc inst the judgment of conviction and order of sentence dated 19"“ January, 998, passed by the 13’ Additional Sessions Judge, Jagdaipur, in S.T. No.5 193 whereby learned Additional Sessions Judge after convicting present accused/appellant Sodi Pandu and co— accused Sodi Soma for commis ion of offence under Section 302 read with This appeai is directed ag r iinai disposai. \ s —~" \r W m...gmi>$,idow5a$} . “=1 200} an?“ W (weer) -VerSL s- Shri Viprasen Agrawal, coinsel for the appellant. . mm,m,m / ( Section 34 of the LP.C., sentenced each of the accused to undergo imprisonment for life. The caSe of the prosecution, in brief, is that Sodi Bandi lodged a report on 10-7-93 at about 3.05 effect that he'is residing with hit; father. buffaloes are missing, therefore, they were searching for those buffaloes. After some time, they came to k ow that buffaloes were taken by appellant Sodi Pandu and co—accused So ' Soma. They have sold one buffalo in the market whereas, after slaughte ng the other they have eaten the same. Therefore, deceased Sodi Mud called the accusedlappellant and asked him that he has committed then f buffalo, on which the accused threatened him. When in the fateful night, th deceased was sleeping in the Veranda of his house, Bandi, son of the dec ased, heard the cries of his father. He saw that the accused persons were olding the deceased by hands and legs. Accused Soma attacked him wit knife. When they saw complainant Bandi, they called him also, but being f ghtened he hid himself and saw from that place that 3 accused persons a er attacking Muda ran away. Sodi Soma was carrying knife whereas, Sodi Pandu and Raja were carrying axe. 'When he raised cries, villagers namel , Sodi Kosa, Sodi Budhu and Sodi Joga came. They were informed abou the incident. Panchayat was convened in p.m. in the Police Station Gadlras to the For the last one month their two W W E‘L 200 mm (WW) WWW ammamia? mmm WMiwm agaifcmwéw WW,W,W W m gi 200 mm (W) amwm WWWiWwg-R WWW“ *3imm soil was seized from the place cf occurrence under Ex.P/2. Blood stained the knife, FSL, earth Raipur and shirt and 0f report the dece Ex.FI sed were sent for chemical examination to 1O was received. Accused/appeiiant Sodi Pandu gave memorandum unde EXP/4, in pursuance of that one knife was seized under EXP/5. The bed of Sodi Muda was sent for postmortem examination to the Government Hospital, Dantewada where Dr. B.K. Tirki conducted the postmortem and ich they denied the material appearing against them. pined that cause of death was coma, due to brain haemorrhage and death was homicidal in nature. He prepared the report Ex.P/13. After completion of the i vestigation, charge sheet was tiled in the Court of Judicial Magistrate, 15‘ Class, Sukma, who in turn committed the case to the Sessions Judge, Ja dalpur where the prosecution examined 6 witnesses. Statements of t accused persons were recorded under Section 313 of the Cr.P.c. in Learned Additi nal Sessions Judge after hearing learned counsel for the respective part es acquitted accused Sodi Joga whereas convicted accused Sodi Pandu d Sodi Soma and sentenced each of the accused as aforementioned. We have heard learned c unsel for the parties. Learned counsel for t e acousedlappellant has not disputed . Moreover, PW—6 Dr.‘B.K. Tirki has stated that on 12-7—93 he conducted t e postmortem on the body of the deceased. He saw that there was stab wo nd behind ear in the size of 1.5 cm x 5 cm x homicidal death of the decease h h n mm,m,m Wm 1n 200 mm (W) WWW mwifgém mmm mmm amifaqaném a 5 cm. Injuries were ante mode in nature and caused by sharp and hard object. On dissection of the bod , he noticed that bone beneath the injury was fractured. in his opinion, cau. e of death was coma, brain haemorrhage, as a resuit of head injury. His report is Ex.Pl13. In View of the above evidence of the doctor, it is est biished that death of the deceased was homicidai in nature. As far as compiicity of t e accused in the crime in question is concerned, PW-‘i sodi Bandi h stated that when he heard cries of his father, he came out and saw th accused Joga was pressing the neck of his father with ciub whereas, S di Pandu attacked with club and Soma attacked with knife, as a result of which he died spontaneously. This witness in cross-examination ha stated that the incident took place in the mid night. Hewassleeping insid the house. His father was sleeping in the Varanda. When he heard cries of his father, he came out of the room. PW-Z Sodi Budhu in cross-exam nation has stated that he did not see the incident. In para-4 he has stat d that it is correct to say that there was quarrel between accused Pandu rid the deceased that is why Bandi, son of the deceased, has lodged a rep rt against accused Pandu. Therefore, in this case, only PW-1 Sodi Bandi eyewitness remains and his evidence is appreciated irrthe light of eviden e of Sodi Budhu, who has stated that as the relations between the deceas d and the accused were strain that is why report against Pandu was lodge by PW-1 Sodi Bandit, PW-1 Sodi Bandi has stated in his evidence that a used Pandu attacked with club whereas, in the mst information report Ex. 1'1 he mentioned that Soma attacked with knife, whereas, Pandu and Raja ere hotding axe. There is only one injury ...» @ g.§c_7g Wm gi 200 WW (W) amm Emmm. $qa$3¥m§j§m of the sharp edged weapon. Them is no other injury of the axe whereas, in fact, knife has been‘recovered from accused Pandu. Therefore, there is material contradiction in respect of weapon which the accused was carrying at the time of commission of crime. in the evidence, PW-1 Sodi Bandi has stated that accused Pandu cked with club whereas, in the first information report Ex.D/1 he carrying axe and in contrary to th t knife has been recovered at the instance of the accused. Moreover, the in ident was of dark night, the deceased was sieeping in the Varanda wherea , PW-1 Sodi Bandi was inside the room. He has stated that when he he rd the crimes, he came out. PW-2 Sodi Budhu has stated that on accou t of animosity between the deceased and accused Pandu report has be n iodged against him. Therefore, in the circumstances, no clear, cogent and clinching evidence has been adduced by the prosec’utiohto connect th accused with thevcrime in question. There was only one injury on the body fthe deceased and PW-1 Sodi Bandi, son of the deceased, has stated that accused Soma attacked the deceased with knife and there is only one i jury, therefore, in the circumstances, it becomes doubtful that the accus‘ d attacked with any weapon. For the foregoing reas ns, the prosecution has utterly failed to establish beyond reasonable do bt that the accused was party to the attack made on the deceased, as suc , conviction of the accused under Section 302 read with Section 34 of the .P.C.)6annot be sustained. in the result, the appeal ucceeds and same is allowed. Conviction and sentence imposed upon th accused/appeliant under Section 302 read a a WW (W) 1:1 200 WWW mm WWW mwiwm ammam 7 Bae , x n/ He is acquitted of the said charge. He be set at iiberty farthwith unless required to be detained in any other case, as it is stated that the accusediappeliant is in detention since 1993. Sd/— T.P Shanna mm with Section 34 of the i.P.C. are set aside. i Sdl- /“ 7‘ L.c.BHADoo Judge Judge w