_ APPELLANT: (In Jail) , NON-APPELLANT: ‘af (Criminal Aggeal under Section 374 (21 of the Code of Criminal Procedure) Madhvee Ga‘nga, aged about 35 years. S!o Kosa Muriya. R/o Village Nayanar. Jogapara, P.S. Katekalyan,Distt. Dantewara. -Versus- sate bf Chhattis‘garh 24-4-2007:- ‘ Ku. Minu Banerje'e, cou sel for the appellant. Shri D.K. Gwalre, Ad itional Public Prosecutor for the State! respondent. L.C. Bhadoo, J. 1) This appeal is directed agai st the judgment of conviction and order of sentence dated 4'“ May, 2 ‘1 passed by the 4‘" Additional Sessions Judge, Jagdalpur in S.T. No.236/2000 whereby leamed Additional Sessions Judge anerv h lding the accused/appellant guilty for commission of offence und r Section 302 of the l.P.C., sentenced him to undergo imprisonmentf life & to pay a nne of Rs.500/-, in default of payment of hne to further undergo R.l; for 6 months. Oral judgment dictated n Dais. XI—HC—78 '2 W m W 200 mm (W) z 2) The case of the prosecutiort, in brief, is that accused Madvi Ganga and Madvi Deva (since dece‘ased) were cousin brothers. There was Tamarind tree in the joint dwnership of the accused and the deceased. In the year of the incident, deceased did not give share of the fruit of Tamarind tree to the used, therefore, there was dispute among them. In the night of 28 2000 at about 11-12 p.m{'accused Madvi Ganga went to the house fMadvi Deva carrying axe in his hand. 0n i hand, Madvi Deva (since eceased) started running. Accused Ganga E while chasing. him attacke him with axe, as a result of which he fell The accused fled from the scene of , wife of the deceased, informed the 1 villagers, on which Panch yat was convened. ln the Panchayat, the i accused made extra judi ial confession regarding commission of murder of Madvi Deva b him. Next day, Somdu, brother of the ice station Katekalyan and reported the matter. Based on that, firs information report Ex.-DI2 was registered. Merg intimation Ex.-D/1 wa given by Madvi Somdu. 3) After registration of the cr e, Investigating Ofltcer left for scene of occurrence, after giving otice Ex.-P/1 to the Panchas, prepared inquest Ex.-P/2 on the bod of the deceased. The body of Madvi Deva was sent for postmortem xamination to the Primary Health Centre, Katekalyan under Ex.-P/3 re Dr. A.D. Bara conducted postmortem on the body of the dece He opined that cause of death was due to massive bleeding an n damage. injury was ante mortem in “s‘eeing Ganga coming to s house in the night carrying axe in his down in the kitchen gar 1 occurrence. Madvi Ha ‘ deceased, went to the \W e d d l al, . e d i -HC-——78 ) EW,W,W @ Wm an 200 1mm (W) WWW ammm )4,. mm wW WWW %af%wm%¥1 nature Death was homncld§ In nature He prepared report Ex -P/3-A The srte plan Ex -P/5 was pr pared Axe was seized under Ex -P/6 4) After completion of the inv tigation, charge sheet was med in the Court of Chief Judicial Magi trate, Dantewada, who in tum committed the case to the Sessions dge', Jagdalpur from where Ieamed 4‘“ Additional Sessrons Judge r ewed the case on transfer $¢ 5) The prosecution examined witnesses at the trial. Statement of the accused was recorded und r Section 313 of the Cr P C In which he denied materlal appearing garnst him In the prosecution evrdence He stated that he is rnnoce t and has been falseiy Implicated In the crime 6) Learned Additional Session Judge aher hearing learned oounset for the respective parties, con icted and sentenced the accused as aforementioned. 7) We have heard learned coun el for the parties. 8) Learned counsel for the acc sed/appellant has not‘disputed homicidal death of deceased Madvi D va. Moreover, PW-G Dr. A.D. Bara has stated that he conducted p tmortem on the body of the deceased. He noticed following injuries: (l) lncised wound ver neck (back) in the size of 3" x 2" x 3", (Ii) ' lncised wound ver left hip (lateral side) in the size of 3" x WW,W,W . Wm 1:1 200 mm (W) mam wmm ,;< WWW“ f awifvmm Hf ? “W (iii) Multipie incised + Iacerated wounds found over back of the head. Dep‘ih of the injuries was up to the brain. Skull bones were fr red. Brain was also damaged. Ciotted biood was pre nt. Injury Nos. (i) and (ii) were caused by hard and sharp object. Injurie were ante mortem in nature and were — sufficient in th ordinary course of nature to cause death. Cause of dea h was brain haemorrhage. Death was ‘ homicidal in t Therefore, in view of above evidence, it is established that ideath of the deceased was hom cidal in nature. I’e. ‘ 9) As far as involvement of the ccused/appellant in the crime in question is concemed, conviction res on the following circumstances:- That the accused ma e extra judicial confession before the Panchayat, . There was motive commission of the crime i.e. there was dispute between the de ased and the accused regarding sharing of the fruits of Tamarind ee. That P'W-1 Madvi Bhima, brother of the accused and the deceased, PW-2 Madvi Hadme, w of the deceased, PW-3 Madvi Somdu, real brother of the decea ed, and PW-4 Madkami Deva have stated that they saw the accu at the place of occurrence after attacking n t i s mmm WMifz‘am agwm axe was seized at the instance of the lV. Weapon of offence i.e accused. ‘ First circumstance: we of these witnesses, we are convinced ion made by the accused before the . as the same is surrounded by suspicious said to be procured after giving threat to Id not disciose then the matter would be 1 Madvi Bhima, in examination-in-chief, e Panchayat the accused said that he «- axe because he was not giving his share But in para-7, he has stated that the I confession on his own without any threat. ted that it is true that Panchas asked the e, he would be handed over to the police. me, in para-2 of examination-in chief, has the Panchayat the accused said that he axe on account of dispute regarding share But in para-6, she has stated that it is 'at threatened the accused and asked ‘you e they will hand over him to the police,’ on iession. Similarly, PW-3 Madvi Somdu has by the Panchayat, the accused made extra judicial confession, therea er the matter was reported in the police. \\ ‘PW-4 litadkami Deva has tated that the accused made extra judicial l confession before the P nchayat regarding committing murder of l 10) Aner perusal of the evidel that extra judicial co "s fanchayat was not volunt n a circumstances and same i the accused that if he wo neported to~the police. has stated ‘that before tt attacked the deceased witt of fruits of Tamarind tree accused made extra judici Again in para-8, he has s accused to confess otherwi Similarly, PW-2 Madvi Had stated that on enq'uiry by attacked the deceased with of fruits of Tamarind tree. correct to say that Panchay confess the crime otherwis that the accused made con' also stated that on enquiry r \ \ - \ ‘ \ WW,W,W ‘ \ Oi W m a1 200 mum (W) mw,m,m 6 Wm GK 200 WW (W) WWW émmm mm§wm ,mwm $3i1a‘wm Madvi Deva.’But ' In cross-examlna " on, e a chayat asked the accused that if he would not say anything, then they would hand over him to the police, on which the accqsed said that he has committed murder of the ceased. Therefore, in view of the above evidence of these witness s, it has come on record that Panchayat gave threatening to the a cused that if he wouid not confess, they police, therefore, under the threat the accused made extra judici Iconfession. For the above reason. we are of the considered opinion t at same is not admissible in evidence. A Second circumstance: 111) Almost all the prosecuti n witnesses have stated that there was Tamarind tree in the joint nership of the accused and the deceased. ln the year of the incident, eceased Madvi Deva refused to give share of the fruits of Tamarind t of the accused, on account of which there was dispute between the two that is why the accused went in the fateful night in the house of the deceased and attacked him. The above evidence has be n given by the prosecution witnesses, therefore, it is establish d that there was dispute between the deceased and the accu regarding share of the fruits of Tamarind tree, as the deceased re ' ed to give share of me accused, therefore, the accused had motive to commit murder. Third circumstance: 12) PW-1 Madvi Bhima has stated that the accused and the deceased R were known to him becau e they are his brothers. ln the fateful night, >4, would hand over him to "s f e e r s Wm an 200 maxim (W) mwm mmifgém $31‘Rmm sleeping. In the mid night, he woke up after hearing cries of wife Madvi Deva, at that time he saw that the accused was running awa after attacking Madvi Deva with axe. He saw him while he was runn ng away. Thereafter, he went near Madvi Deva and saw that he was iready dead. His house is adjoining to the house of Madvi Deva. M dvi Deva was lying dead in the kitchen "s -garden. He informed Sukd who in tum informed Hadma. Thereafter, the villagers collected and w body of the deceased. in para-4, he has stated that at about 1 in the night his neighbour Madvi Deva ‘raised cries ‘save save' cries of Madvi Deva, he deceased Madvi Deva, h husband and children we accused came carrying a husband started running t him carrying axe in his hand and attacked him. He attacked on account of dispute regarding sharing of fruits of tamarind tree. ln fact, she did not see actually attacking, but she saw thereaiter injuries on the body of her husband. 3 Madvi Somdu has stated that houses of Deva, Bhima and his h use are adjoining. They have common kitchen garden. Hidme ca in the night and informed him that Ganga is chasing Deva with axe i his hand. He did not see the accused attacking the deceased. H reached after the accused attacked the deceased. in view of the a ove evidence, it is established that these witnesses saw the accused n the house of the deceased carrying axe \- in his hand. in front of his house, he w ga is attacking him, therefore, hearing ke up. PW-2 Madvi Hadme, wife of " stated that in‘the fateful night she, her sleeping in the Kotha. ln the night, the in his hand, on seeing the accused, her rds kitchen arden. The accused chased 5 G a r x o n o WW,WW,W Wm wt 200 WW (W) mmm mmiwm asai’rzmm j3) Learned counsel for the accused/appellant argued that on accbunt of night it was nat possible for these witnesses to identify the accused. i Almost everyone has state that none of them saw the accused actually attacking the decea ‘ l , 1h) it is true that in the evidenc of these witnesses it has come that they shad not seen the accused ctually attacking, but in their evidence, it has come- that the accus d was carrying axe and chasing the deceased up to the kitch n garden which was seen by these £ witnesses. The accused ra away. The presence of the accused is established in the house of the deceased by the evidence of these witnesses. The accused s very well known to these persons because he had share in th tamarind tree with the deceased. There was enmity between the two on account of the fact that the deceased refused to give share of t fruits of tamarind tree to the accused. Therefore, the accused was ll known to these persons in advance. He came in the night. Wh i e cries were raised, these witnesses saw ediately after the incident they saw the e the accused running away. deceased in injured conditi Fourth circumstance: 15) Axe, weapon of offence, wa ' seized from the accused under Ex.-P/6. PW-4 Madkami Deva has tated that police seized axe from the accused, same was stai with blood. PW-5 H.L. Patel, Sub Inspector, has also stated th t he seized axe from the accused under Ex.-P/6. The doctor examin the same and opined that injuries found \ a h m o . n XI-HC—78 @ Wm wt 200 mwm mmiwm éa‘Wm ' on the body of the deceased could be causerlby the axe in question. x He gave his report Ex.-P/8-f 16) Cumulative effect of abov "‘ n was recovered from the accused, therefore, based on the a ove evidence, it is established that the accused was author of the c ime in question. 1‘7) ln the, circumstances, we ar of the~considered opinion that there is no illegality or infirmity in the circumstantial evidence is that there was dispute between the accus d and the deceased regarding sharing of " the fruits of tamarind tree, t e'accused was seen by the witnesses at the place of occurrence c rying axe in his hand, the accused had motive on account of refus ng to give share by the deceased to the accused, the axe in q ment of the trial Court in convicting the accused for commission of ffence under Section 302 of the l.P.C. for committing murder of Madvi 18) In the result, the appeal bei \and it is hereby dismiSsed. 8d]. \r L.C.BHAD00 i Judge V Barve Va. devoid of merit is liable to be dismissed '—f Sd/- DHIRENDRA MISHRAI Judge 3a acne, ma,W mvm (W) u j 'o g