WW,W,W Cwx‘ w 55% I 0% Wm In 200 WW (W) (Criminai Appeal un :ier Sec‘rion 374 (2) of +he Cr.P.C.) Division Bench : Hon’blz Shri LC. Bhadoo & Hon'ble Shri T.P. shama 32F 2-4-2008 Heard Shri Roop Naik, counsel for The appeiiun‘r & 5hri Akhi! Mishra, Dy. Govt. Advoca'te for The 51' e. Today ’rhe muffer- is ixed for admission; bu‘r *he accused is in defen‘rion since 5-2-1997; The by he is in defen‘rion for more “khan 11 years; with fhe consenf of Iearned c unsei for fhe parties ihe appeal is hear-d for- fina! disposaL Oral judgmeni’ dici'ai'ed on dais: L.C. Bhadoo. J This appeal is directed 'agains‘i' The judgmem' of convicfion and order of sen‘rence dared 19-12-19 7 passed by ‘rhe Special Judge, Bosi’ar a? Jagdalpurt. in sessions ‘rriol No 147/97 whereby learned Special Judge offer \ mmm am 311%m mma amt mmwiwm ‘éa‘ aimm Appeilam > Kmmu Bhima; S/o Hidma, aged 3O year-s, Ri’o Bodko, Poiice S‘i'ai’ion Gadiras, Dis'i'rici' Basfar (MR) (new C.6.). Versus Resnondenf S‘mTe of Madhya Pradesh (now Chha‘Hisgarh), Through In-charge Poiice Sfa‘l'ion Gadir'as, Dis‘rric’r Bas‘rar (MR) (now 6.6.). WW,W,W Wm Ia 200 WW (W) MWW WW§%€IW , mwm 3211mm %wifanan%21 holding fhe accused/apyelian‘r guiHy for commission of affence under Secfion 302 of ‘rhe Indian Peru! Code (for short "#13 ZPC’) for commi'rfing murders of Sodi Kesa & Hirdo Pandu; sen‘renced him To undergo imprisonment for iife under coun‘l'. However: i'i was direc‘i'ed tho? boi’h fhe semences shall run concur enfiy. 2) Case of fhe prosecuti ; in brief! is Thai on 1-2-1997 fhe accused/ appeiiani' asked Hirdo Pandu ( ince deceased) & Sodi Keso (since deceased) fo go for consuming Wad/'juic (an infoxican‘i’ subsi'ance). On fhis ail The 3 per-sons went 1'0 forest Th Sodi Kesa (since deceased) demanded an amoun‘i' of Rs.2,.OOO/- from fh accused regarding The land. On ‘i'ho‘i' counf some al‘iercafion & scuffle ‘roo place befween the accused &_ deceased Sodi Keso. Accused mocked Kes wi+h the knife, which he was carrying for cu‘H'ing 1’he branches of Thad free. Kesa sustained injury on fhe neck and succumbed To fhe injuries su ained by him. When Hirdo Pandu came ‘io intervene, fhe accused inflic‘re a knife blow on his sdomach also; as a resuh‘ of which on 2-2-1997 Pandu s ccumbed fo the injuries susfained by him on The way when he was being ‘ia n ‘i‘o fhe hospi‘iai‘ The maf‘i'er was reported by PW—Z Hirdo Hirma, faihe of deceased namely, Hirdo Pandu, in Police Sfa'rion Gadiros under EXP/1. Merg jn‘iimai'ion was also given by him under Exs.P/12 & P/13. 3) Affer registering The c imea 1'he Invesfigoiing Officer lefi' for The NL scene of occurrence. He se fhe knife i.e. weapon of offence under _ i e e h o e i d mW,m,W W m W 200 mm (W) mm f3¢m WWW agaimm EXP/2 from The accused. Aft r giving nofice To fhe wi‘rnesses; he prepared inquesf on The bodies of Pan u & Kesa under Exs.P/4 & P/5. Injuries of accused were examined by P —6 Dr. Akhileshwar- Uraon. Injury repori is EXP/11. Body of Kesa was s n? for pos‘l’mar-fem examinafion 1'0 Primary Healfh Cenfre, Gadiras‘under Ex,P/14 where PW-6 Dr. Akhiieshwar Uraon conducted pos'i'mor'i'em and opined fha‘r The cause of dem‘h was haemorrhage, asphyxia (suffo ion) :3; air embo lirm‘ Deafh was homicidal in nature, Posi'mori’em reporf is EXP/7. Body of Pandu was aiso senf for posfmor‘rem examination 1'0 Pr mary Heai‘rh Cenfre; 9adiras under EXP/15 where PW-é Dr‘ Akhileshwar raon conducfed pos‘imorfem and opined Tho? The cause of deafh was sho ,. haemorrhage & injury fo infernai organ. Dea1'h was homicidai in nafure. 9os‘imorfem reporf is EXP/6. 4) Affer complefion of inv igafion, charge sheer was filed in The Cour? of Judicial Magis'rra're; Firsf lass, Sukma who in Turn commi‘l'fed The case 5) W mm, m, deceased persons wenf 1'0 quarrelling wi‘rh him and gave k 6) J1, respec‘rive parties, convic‘m aforemeni'ioned. 7) We have heard Shri RO Shri Akhii Mishm, Dy‘ Gov‘f‘. A 8) Shri Roop Naik, ieam fhe homicidal death of Kesa Uraon has sia‘ied fhai' on 3-2 af Pandu‘ There was one epiges‘rrium region! Deafh EXP/6. He has furfher pbsfmorfem on ‘i'he body of K Learned Special consume Wadi juice; there Kesa si'ar'i'ed eating 1‘0 him. ‘dge affer hearing i and sentenced “the accused/appeiianf as bp Naik£ ieamed counsel for ihe appellan‘t and ivaca‘ie for fhe Siafe. counsel for The appeHani', has no‘i disyufed 8: Pandu. Moreover; PW-6 Dr. Akhiieshwar 1997 he conduci'ed posfmoriem on fhe body incised wound on fhe sfomach beiow The s homicidal in nafur-e, Postmortem repor‘i‘ is ed fhai' on fhe same day he conducfed ‘a also. There were 5 incised wounds on righ‘r Deve has W W m 200 mm (W) WWW aim WWm mma‘e‘am madam WW,WE,W avidencei if is esfablished Thmf 1'he deafh of Kesa & Pandu was homicidal in mrrure. 9) As far as compHcify of ‘rhe accused/ap'neHan‘r in The crime in quesfion is concer'ned; PW-1 Kalumu Dave has stated 1‘hm‘ on ‘I’he fafeful day she wen‘l’ 1'0 foresi- for collecfing wood. She saw in fhe fieid fhui' Kesu: Pandu & Bhima were quarrelling. Bhimn med Kesa wi'l'h knife on his neck and also affacked Pandu wifh fhe 5am knife on his sfomach; as a resuh‘ of which Kesa & Pandu died. She came o 'rhe village and disclosed abou‘fihe incidem 1'0 Hirma 10) PW-2 Hir'do Hirma, fa? er of fhe deceased namely; Hirdo Pandu, has s‘ra‘red Tha‘r on fhe fateful Kesa came 1'0 his house and fhereafi'er, Bhima also came 1'0 his ho They 1'00k his son Pandu wifh i'hem for consuming Thadijuice. PW-1 alumu Deve came 64 informed him Thai Bhima has a1'l'acked Kesa & Pandu wfh kni‘l‘e. She furfher disclosed 'i'hal' Pandu susi'ained injury 0n sfornach r'eas Kesa sus‘iained injury on neck. When fhis wh‘ness i.e. PW-2 Hirdo H rma wen? To The spot Kesa was lying dead and Fandu was sfill alive. On enqu ry‘ Pandu disclosed *rha'l' Bhima had af'i'acked him & Kesa. There was a disp e regarding money. Pandu also disclosed him Thal' when Kesa & Bhima were uarrélling he infervened and in ‘l'ha‘r process he sus‘rained injuries. ?W-2 H rda Hirma lodged 'rhe repori' Ex.P/1 in Police Sfa'rion. \ i ak u . e W m E1 200 mm (W) mmm WWW WWW Wm§wm $Wm 1&f£. “iv @ WW,M,W Wm vi 200 mam (W) Wm w; 200 WW (W) WW, EWIH] E ,W @ WWW ammamiih‘ mmmm WW§WW éa‘affmm They were quarrellingi a? Tha‘r fime; Pandu susfained knife injury, buf he did no? disclose fhaf he was affacked wifh knife. If is correct Tha‘r when Kesa (3: Bhima were quarraHing Pandu im'ervened and a'r ‘H'Ia'r ‘Hme he sustained knife injury. SimHar' is fhe evidence of PW-5 Madavi Lukkha. There is no evidence 1‘0 fhe effecf fhai' wi'rh premedifafion & prepare“? ii'he accused at‘l’acked The deceased persons 15) Perusal of The evidence shows fha‘i' when all fhe Three persons consumed Thadi juice; decea and in fhai' process quarrel fha‘r pandu disclosed him 'l'h affcck and in fhaf process ‘rh in injury repor‘i‘ Ex.P/11. Th region of ‘rhe head of fhe ac On. d Kesa demanded money from i'he accused cried. Even PW—2 Hirdo Hirma has sl'ai'ed in fhe firsi' insi'once deceased Kesa made accused sustained fhe injuries as menfioned re was one lacera-i'ed wound on The occipifal used. Therefore; fhe accused mocked fhe Wm 1n 200 minim (W) Wm in 200 mm (W) Wimfawim ammm WWIWW éa‘aiwm WWW was one lacera'l'ed wound. As per fhe evidence of the prosecu'l’ion wifnesses§ ‘rhere was an alfercafion & scuffle fook place befween deceased Kesa an 1’he accused and in #haf proc , ‘Hne accused a‘H’acked deceased Kesa 17) Looking 1'0 1'he backgro nd & circums‘rances of fhe case in which fhe offence fook place and The ac‘r fha‘r +he accused sus‘rained injuries; i1- canno‘r be said 1'ha1' +he ac used acfed in an unusuai (Si cruel manner. Therefore, The case of 1'he a used squarely covered under excepfion 4 of Secfion 300 of fhe IPC. 18) For 'rhe foregoing re onsl convicl’ion imposed upon the accused/ appellan‘i under Section 302 o The IPC for commii‘ring murders of Sodi Kesa :34 Hirdo Pandu cannof be su ained; consequently; sen'rences imposed upon him under Those counTs also ca noT be susTained. 19) In The result The ap parTly succeeds. The convicTion & senTence imposed upon The accused/ap'ellam‘ under SecTion 302 of The IPC are seT aside; insTead Thereof he is c vicTed under SecTion 304 ParT-II of The IPC and for each murder he is Tenced To undergo RI. for 10 years for commiTTing each murder of 5 di Kesa <3; Hirdo Pandu. The senTences shall run concurrenTly‘ IT is sTaTe ThaT The accused/appellanT is in deTenTion since 5—2—1997; Thereby he as already compleTed The senTence imposed upon him‘ Therefore; he be s T aT liberTy forThwiTh; if noT required in any oTher case lsx Sdl_ l w;,—‘** r l T..P.Sharma" Judge '_...\ d e p l n .