., 3 ‘ I—13$(Jal1)cxu y Ram 9H » APPEAL_Q§.EBE§EEB 0..‘>..7...z@. N/y? . Neme-@-%eg;\777@5 gg772fg/g ‘ '- ather esuience? s Name iG W®E7 §g£@wag¢/?W¢¢ aw— @g@ wg’y/E age (Z9 ,g—cm[@—3¢at% ximder Sectlon— g/f/ :35 gg‘Lfm-f f-éx byw/yg7wé’ww9” gar Sentencei. to- ‘3}; c”; gyg/z/Zy— *‘ Z_”"' ", www— ~ It t; ls be explalnled represented to by thv a prisoner legal practltlener that if he thn gta’ces appellate he wishe§tf§ Court ,wlll practltmner not praceg appears 1th earlltr. the case If for the qpven legal days practltloner unles< the does l ga not prlsonsr apyear stata‘s‘that wlthln seven he days does not he may W1sh not to heard be repressntatcd at all 1f the hy A legal and will practl not loner ,obllged the court to glve may a proceed hearing at to once my legal \wlth the practi— case I tloner who sh )ld appear. 1. Date of App atllnd‘cr copy o’f Judgementwm m 2. Date on Whlcn tooy Pecelvedw e 7— 5g, /f,1@@0. .. .. _ _ ‘ 5’. r vrlshes , ., to J be vgizr/i represented or. not— ' ’* e ez % . ; ; I ND... conflned -jfN 1n 0 \~ 1 - JL §~ 9.5.5 ;- . —Name-@ *Jaib— ‘m gi‘ we; @fgfg/n— —@®~wfZ/WM— @wzgwW/w' ~ - - ~ 5— - -‘ "*w ~ ‘ >- ,— No-— —- - * J7ge - - d Dated- " —//-z@w-a 199—— ? —V-— ~§ Fbrwardet to th§%/yW/9 QUAE #Ccfya7/5; gteqvg/f w%.{gf¢&wggk to case gather for favour wl‘th a of copy tr of. nsmlssmn Judgement to or the order prop passed r Appellate n court. Date of recelpt 1n—- ~ ? - -— — -Ofl:Lce- -— ~ ~ - v f —-—-~ ~ _ ‘ ~ Late of receipt of recotrd to accompany te~ —— ~— ’ 1 i Memo of Appeal to thel Appellata Court-w-z— ~ -»\- —————— NoL- ~~~~~~ Forwaroed o the. Date of receipt Ln Appellate cour i ; Q) t _w__-w__.._. . xn l , l, o ‘ é 9 “ h j ~ f t ' XI-HC-22 u» (4 DIVISION BENCH HON’BLE MR. L.C. BHADOO & HON'BLE MR. V.K. SHRIVASTAVA, JJ. 1 1 -1 0-2006 Mr. Arun Kochar, counéel for the appellants. Mr. U.N.S. Deo, Addi‘tional Public Prosecutor for the State/ .‘F - respondent. Oral judgment dictated on Dais. PER L.C. BHADOO, J. This éppeal is directed against the judgment of conviction and * order of sentence dated 4th October, 2000 passed by the 1“ Additional Sessions Judge, Raigarh, in S T. No.162/99 whereby Iearned Additional Sessions Judge after hold n9 the accused persons guilty for commission of offence under Section 302/34 of the l.P.C. sentenced each of the accused to underg imprisonment for iife. The case of the prose utiOn, in brief, was that on'10-7\-99 at about 7-8 am. in the morn ng when deceased Beefu Yadav was preparing for ploughing his fi ld, at that time, the accused/appellants, brothers of the deceased, c me there, asked him that they would plough the field and started uarrelling. They attacked their brother Beefu (since deceased) with ists and kicks. They threw stone which When PW-1 Sukanti, wife of Beefu Yadav, tried to intervene, the ccused persons separated her. Sukanti raised screams. Hearing scr ams Sadhu Yadav (PW-4) came on the landed on the chest of Beef . (ens W) XI-HC-22 MW§WW WWW ggwm spot, thereafter Sukanti went‘to call villagers. But, in the meantime, Beefu succumbed to the inj ‘ries. Thereafter, PW-7 Surajman, elder brother of the deceased and ccused, oame on the spot. The matter was reported by Surajman (PW-7) in the Police Station Kapu. Surajman gave merg intimati n (Ex.-P/5) and based on that, S.H.O., Police Station, Kapu register d First Information Report (Ex.-P/6) for 1 a, s commission of offence under Section 302 read with Section 34 of the l.P.C.. Ihe Investigating Offi er took up investigation, left for scene of occurrence, seized one piece f red stone weighing about 1 kg from the £place of occurrence under E -P/1, after giving notice to the P,anchas, prepared inquest report (Ex-P/2) of the body of Beefu. He alsot prepared site plan (Ex,—Pl4). The body of the deceased was sent for postmortem examination to the Assistant Surgeon, Dharamjaigarh where Dr. Smt. Bindu Si ghai (PW-14) conducted postmortem, prepared postmortem report x.-P/11 and opined that death of Beefu Yadav was combined effect o coma and syncope, as a result of head injury and massive intra abdo inai haemorrhae. Death wasthomicidal XX“AA U A \ in nature. After completion of t investigation, charge sheet was filed against the accused persons in the Court of Judicial Magistrate, 15‘ Class, Dharamjaigarh, who, in turn, committed the case to the Sessions learned Additional Sessions Judge Judge, Raigarh, from wher received the case on transf r. At the conclusion of trial, learned (dis W) . h XI—HC—22 man ‘ i mmarm WW§WW éxwm l .".~‘.,,wu . -..w Additional Sessions Judge :onvicted and sentenced the accused persons. The prosecution in order to estabiish the charge against the accused persons examined 14 witnesses. On the other hand, statements of the accused persons were recorded under Section 313 of pew; i the Cr.P.C. in which they denied the material appearing against them in * the prosecution evidence and stated that they are innocent. ‘ we have heard learned counsel for the parties. i Mr. Kochar has not disputed the fact of homicidal death of the deceased. Apart from that, from the ocular evidence of PW—1 Sukanti, a Wife of the deceased, that the accused persons attacked the deceased ' with kicks, fists & stone,‘and also medical evidence of Dr. Smt. Bindu 47? Singhal (PW-14), who has stated that there was injury on the parietal “l region, on the right side of tte chest, on opening of the body it was noticed that liver was ruptured, the deceased died on account of coma & syncope, and haemorrhage‘ in the stomach, deathwas homicidal in nature, it is established that eath of’the deceased was homicidal in nature. As far as involvement of the accused persons in the crime in question is concerned, crime as witnessed by PW-1 Sukanti, wife of the deceased, who has state that in the morning of fateful day her husband was preparing for/\p ou’ggigg‘wft that time, the accused persons, who are brother- , came on the spot and started quarrelling with her husband aying that they would plough the field. New) XI—HC—22 WW 1‘ WW € WH%H WW&’EQ%W » hafiwm f ‘ ) \ ‘ \ > wk The accused persons attackeo her husband with kicks and fists on the head and also with stone on the chest. She raised screams, on which Sadhu came, even on the inte rvention of Sadhu the accused persons did not stop, therefore, she calied villagers, by that time her husband was already dead. The pre‘sence of this witness in the house in eariy morning is but natural. In cross-examination of this witness the defence ‘* " has not been able to elicit any circumstance which makes the evidence of this witness unreiiable or u ustworthy. The evidence of this witness £stands corroborated by the me ical evidence of Dr. Smt. Bindu Singhai (PW-14), therefore, to this e ent, we do not find any illegality or infirmity in the judgment of the rial Court. Mr. Kochar argued tha the deceased was real brother of the accused persons, quarrel start d in connection with right to plough the field, the accused persons onl attacked with kicks and fists and in the quarrel, they picked up stone I ing on the ground threw it which landed on the chest of the deceas , therefore, from the above act of the accused personsjt cannot b saidthat they had intention‘to cause death of their own brother. T e incident happened in a sudden tight, therefore; offence against accused/appellants does not travel beyond Section 304’Part-ll of t e l.P.C.. On the other hand, le rned counsel for the State/respondent supported the judgment of the ial Court. Having heard learned c unsel for the parties, having perused the evidence of PW-1 Sukanti,. fe of the deceased, we are of the ‘\\ \ (die W) n r e t i XI—HC-22 WW&‘WW éamm considered opinion that argu t advanced by Mr. Kochar is based on evidence on record, as the eceased was brother of the accused persons, there was some dis ute among brothers regarding right plough the field, when the de eased was preparing for plough' the field, the accused personsca e on the spot, they asked him that they would plough the field, in that process, quarrel took place between the brothers, in that process, the ccused persons attacked the deceased with kicks and fists as also t threw stone which landed on the chest of the deceased. On accou t of injury, liver of the deceased was ruptured‘which proved fatal. Therefore, the above facts show that quarrel was sudden, in a h at of passion, without rare-meditation. Moreover, the manner in w ich the accused persons attacked the deceased, it cannot be said hat the accused persons attacked the deceased with intention to kill heir own brother. The manner in which the accused persons attacke the deceased, it can safely be inferred that the accused persons d knowledge that by assaulting the deceased in such manner, th may likely to cause death of\their own brother, therefore, offence a9 inst the accused persons under Section 304 Part—ll of the l.P.C. is mad out. ln the result, the ap eal partly succeeds. Conviction and sentence imposed upon the accused/appellants under Section 302 read with Section 34 of the l.P . are set aside, instead thereof they are convicted under Section 304 Part-ll of the l.P.C. and sentenced to undergo R.l. for 7 years. lt stated that the accused persons are in J” ....c..‘.,._w . (die alias) m n h a . i XI—HC—22 m L a 3am,m,m mm mCKQML 15/m E 200 W111? uma‘fffwm $Wm L detention since 1-7-99, thereh sentence, other case. Sdl- L.C.BHAD00 Judge J) Py they have already completed 7 years’ therefore, they be n‘eleased forthwith, [fl if not required in any Sd/- V.K. Shrivatava Judge 3