-78 ^ 371^T^ f^rlicb Tf^T 3TT^T 5FRN7 T^T^TPTT^T, yTti<141<o, f®101^^< ^^ ^^.....&:..A...te.2c>.^..efe-....^ ^ 3:iT^?r 'q^? (4^f^<iyr) ^RTTW ^rf^r ^n^r APPELLANTS: (JnJail) -V RESPONDENT: (Criminal Appea! ur Division Bench: - Hon'ble Shri L.C. Bhadoo & Hon'ble Shri T.P. Sharma. J^ 22-2-2008:- CM^(<n<i)^ ^i*i<A ^F^fe^ <R»i^i< ^ ^tRpT 3TT^T 11. • Somaru, S/o Chaitu, caste - Mariya, aged about 55 years 2. Bisru, S/o Dashmu, Caste Mauriya, aged about 45 years, |3. Ginnu, S/o Dashmu, Caste Mariya, aged about 40years, AII are resident of Village - Jharavahi, Pittepalpara, P.S. Narayanpur, DisSt. Bastar srsus- The State of Chhattisgarh, Through: Police Station Narayanpur, District Bastar, (Chhattisgarh) ider Section 374 (2) ofthe Cr.P.C.) cate, appears on behalf of Smt. Savita Tiwari, Shri Abhay Tiwari, Adv4 Advocate for the appellants. Shri Akhil Mishra, Depu|y Govt. Advocate for the State/respondent. Oral judgment dictated (>n Dais. L.C. Bhadoo. J. 3:wT ^N1^^, »Tfl<1'l<S, (s|<?i»iy^< ^Wdl sb*41<=h "^ 200 W^^ ^[cb 1cT2TT STI^T 5h^l<=b 3^?r XR^ (4^^<^) ^RTTW^f^r 3:n^r This appea! is directed of sentence dated 6th May, 2| Judge, Jagdalpur, in S.T. No. Additiona! Sessions Judge aft{ commission of offence under for causing the death of Admo| Imprisonment for life & to pay a| to further undergo R.!. for 2 mojiths tgainst the jucigment or conviction and order it)Q2 passed by the 1st Additionai Sessions ^15/2001 whereby and whereunder iearned fc^r hoiding the accused/appellants guilty for Slection 302 read with Section 34 of the I.P.C. sentenced each of the accused to undergo |fine of Rs.100/-, in default of payment offme The case of the prosec 7.30 p.m. in the night the acc caused his death. On 2 Jul father of deceased Admo, loc| Narayanpur that on 29-6-20011 Mata went to Ghooma for wor l^fnishing of work. After some| for the purpose of attending commotion. The mother of Acjmo and disclosed that Somaru h{ pedestai. Hearing this, he w^nt dead. There was injury of bla4 and Somaru attacked him murder. Receiving merg Ex.P/2| Station Narayanpur registef CM<<f<n<flTi ^i^<nl '^\1^T^ <Fa4^l< ^ 3itR[H 3TT^[ [ition, in brief, is that on 29-S-2001 at about ised persons attacked deceased Admo and f, 2001 at about 12.10 p.m. Madda Madiya, Iged a report (Ex.P/1) in the Police Station |at about 7.30 p.m. his son Admo aiong with king there. In the evening, he returned after lime, Ginju and Somaru took Admo to Ghotui neeting. After some time, they heard some went and saw her son, retumed to home ild Admo whereas, Ginju attacked him with nt to Ghotui and saw that his son was (ying colour on his cheek, neck and chest. Ginju stick and pedestal and committed the vl/ith to that effect Station House Officer, Poiice ed First Information Report Ex.P/1 for ~S:^f ^WW^, ^x{i^<l^, ?s)<>iil^< Nl^ldl shHlch ^ 200 ^T^RT ^T f^^icb 'cT^T 3TR?T 5b^l<=b 3n^?r ''rsy^F (4^flfl<^) ^«11W<yf^^ conimission of offence under I He left for the scene of o<| Panchas, he prepared inque^ the deceased was sent fl Narayanpur under Ex.P/9 ^ postmortem on the body of was subdural haemorrhage homicidaS in nature. After completion of th^ Court of Judidai Magistrate, the case to the Sessions Juc| Sessions Judge received the Prosecutjon in order tt persons examined 7 witness^s recorded under Section 313 ^fthe appearing against them jn i^ innocent and have been falsel Learned Additionai Set the respective parties, convic^ed aforementioned. We have heard Shri Afcj Akhil Mishra, Deputy Govt. A^ <=bi^f<n<i1Ti 'HFRff ^F f^^ <Pn<^i< '^^fRw^TT^T ISection 302 read with Sectjon 34 of the i.P.C. tcurrence, after giving notice Ex.P/7 to the |t Ex.P/8 on the body of Admo. The body of )r postmortem exar?^nation to the C.H.C. l/here Dr. K.K. Sori (PW-6) conducted the t|ie deceased and opjned that cause of death pue to injury by hard object and death was investigation, charge sheet was filed in the ist Ciass, Narayanpur, who in turn committed ge, Jagdalpur, from where learned Additional ^ase cn transfer. D establish the charge against the accused ^s. Statements of the accused persons were Cr.P.C. In whjch they denied the materia! e prosecution evidence, stated that they are y impjicated jn the crime in question. ision Judge after hearing learned counsel for and sentenced the accused/appellants -as hay Tiwari, counsel for the appeilants and Shri vocate for the State/respondent. 3^^r ^ll^l^-^, ^Tfi^ll<o, fs«yil^^< 4 WH^\{ 9h^l<sb ^ 200 SIT^T ^T f<Tli<=b ^T^TT 317^ $t)^ict) -( '< 3^?T 'q^? ( <i^lfl<^) '^rrw ^if^r 3?n^r Shri Tiwari has not dj^ Moreover, Dr. K.K. Sori (R/V^ the postmortem on the bod^ parietal region. On pressing i^ of parietal bone. There was s| was brain haemorrhage, as ^ nature. The above medicaj RA^-3 Rama, who has stated 1 on his head, as a result of above, it is established that thi tputed the homiddal death of the deceased. ?-|6) has stated that on 2-7-2001 he conducted of the deceased. There was abrasion on itjury place jt was found that there was fracture Iweliing on scrotum and penis. Cause of death result of injuries and death was homicidal in levidence is corroborated by the evidence of |hat in fact, Bisru attacked Admo with pedestal ^vhich Admo died. Therefore, in view of the fe death of Admo is homicidal jn nature. As far as compjicity of t| concemed, there is only one ^ has stated that Bisru attack4 where 3 accused persons w^ first instance, attacked Guttil pedestal and Ginju with club. RA/-4, but he has not stated accused on the head of the Somaru and Ginju attacked Court. Therefore, the evideni evidence of Gutti. There is evjdence of PW-3 Rama, onll Even though he has stated t^ there is no second injury. invoivement of accused GJnj|i cbl^f<n^1Tl '^TR^Tf '^\fe^ Tf^RC$R '^3TRFT31I^T lie accused persons in the crime in question is yewitness to the jnddent i.e. PW-3 Rama. He ?d Admo. Bisru called Panchayat in Ghotul re present. Without any reason Bisru, in the At that time Somaru attacked Admo with jn this case, Gutti has a!so been examined as anything about the attack made by any of the deceased. He has simply stated that Bisru, him for which there is no charge before the ;e of Rama has not been corroborated by the ily one injury. Therefore, in view ofthe above 1 charge against Somaru stands established. lat Ginju has also attacked him with club, but There is no other evidence to establish and BJsru, therefore, their conviction under or|ly ^-^c| •^1<<10^, y»Tfl^<l(o, fsf<y!il^l^< ^n^r ^r ^ich 1cTSTT 3?n^T 5t)^|ch ^ '-<- ^IINdl ^b^llcb •-""••••••—••—•••""—•"——-•—..^ 200 3n^?r ^^K (4^^<yar) ^<wiW <if^a <3?1^[ However, complidty of accus Shri Abhay Tiwari argi^ not established that Somaru his death. ASIegation agains) pedestal. In the same mee| further argued that from the| why Somaru attacked Admo.| a!tercation and during that (| cr)i<4f<ii^iTl ^H<?il ^fe^ '<F»1^K '^^tRm^^Tr^r Section 302 read with Secftion 34 of the i.h'.u. cannoi oe sustained. »dSomaru is established. led that from the evidence of PW-3 Rama, jt is attacked the deceased with intention.to cause him is that he attacked Admo only once with :ing, Bisru and Ginju also attacked Gutti. He evidence of RA^-3 Rama, jt Is not clear as to It appears that in the meeting there was some ourse, Somaru attacked Admo with pedesta!, therefore, offence against Sc|maru does not travei beyond Section 304 Part- llofthei.P.C. Shri Mishra supported|the judgment ofthe trial Court. Having heard iearned material available on record the appeilants appears to b^ 3 Rama has not stated as t| counsel for the parties, we have perused the Argument advanced by learned counse! for based on material avaiiabie on record, as PW- why Somaru attacked Admo and he attacked only once with pedestal whi4h was {ying at the place of meeting. Therefore, from the above evidence, it 4;annot be inferred that the accused attacked the deceased with intention to ^ Somaru for commission of <j |ause his death, as such, conviction of accused ^ffence under Section 302 read with Section 34 ofthe I.P.C. cannot be sustslined. In the result:- 3'^ET ^Nl<?'i<1, ^xfl'M'Ko, (st<!6iy^< W^v{{ *<4(ch "^ 200 ^TT^T^rf^N' ^TSH 'STI^T 5ti^icb ...< Barve 3H^?T'q^? (4^flfl<<^) '^TTW^f^r 3?i^r > The appeal in respe^ same is allowed. C( under Section 302 res They are acquitted forthwith unless requirje p: of accused uisru ana yinju succeeds and )nyiction and sentence imposed upon them ^d with Section 34 ofthe I.P.C. are set aside. ?f the said charge. They be set at liberty ^d to be detained in any other case. resp^ct > The appeal in Conviction and senteit with Section 34 of 111' convicted under Sect| undergo R.l. for 7 ye^i since 5-7-2001 tilltodfc the above detention cr»i<if<rt<flTl^^<fl ^fest 'rf^c5R ^stfOT^ff^r of accused Somaru is partly allowed. ice imposed upon him under Section 302 read e j.P.C. are set aside, instead thereof he is on 304 Part-1! of the I.P.C. and sentenced to rs. 11 is stated that the accused is in detention ?y. The accused shall be entitled for set off of against the sentence imposed upon him. p^riod Sd/- L.C. Bhadoo Judge Sd/- T.P. Sharma Judge