. cw” {Criminal appeal under Sec‘rion 374 (2) of The Code of Criminal Procedure} Division Bench: Hon'ble Mr. L.C. Bhadoo and Hon'ble Mr TP Sharmn .TJ'. 31-3—2008 Mr. P.K. Tulsycm, counsel for ‘r 1e appellant Mr. Ashish Shukla, Additior‘al Public Prosecu‘ror‘ for “the Sfa'fe/ respondent; To day This mof‘rer is lis‘red for admission, buT if is s’ra‘red Tha’r ‘rhe accused is in defem‘ion since January, 1998, Therefore, ‘rhe maf’rer is heard for final disposai a’r The admission sfage wi’rh ‘ihe consem‘ of counsel for The par‘ries, as The accused is in deTenTion since more Than Ten years. Oral judgmenT dicTaTed on Dai v: l..C. Bhadoo, ‘Ji. — : szv‘rw>bw;«.v;,,Em/un mo, a,” W m six]. 9%,.“ 200 mm (W) @ mam ammm WWm WWdWW % Wm AEE§LLANT: , Mn . ’ (In Jail) Aged abouT 37 years, R/o Viliage Guma, P.5. Tongpal, DisTT. DanTewada (6.6.) - Varsus — RESPONDENT: STaTe of ChhaTTisgarh, Through P.$. Tongpai, DisTT. DanTewada (CG) mm m 200 mm (W) WWW Hm WW ?§@W WWW aawm Wm h. This uppcu: I is oimgieu‘ I uguinsi i'ne JudgmenT of conwcnon and order of sen’rence daTed 18—9—1998 passed by The 2'” Addifional Sessions Judge, Jagdalpur' in Sessions Tr'ial No.13"/98 whereby & whereunder‘ learned Addi‘h‘onal Sessions Judge offer hding ‘rhe accused/oppeHan‘r guih‘y for commission of offence under Secfi n 302 of fhe I.P.C., sen‘renced him To Jndergo imprisonment for life and oy o fine of Rs.1,000/—, in defoulT of saymenf of fine To fur‘rher undergo Case of The prosecu‘rion, in brief, . i I. for one year. ThaT of about 4 p.m. on 3-1-1998 in .Villoge Guma accused aTTacked BuT (since deceased) wiTh a stone as a *esult of which BLitiram sustained inj ries on head, skull bone was fractured nd he succumbed on 6-1-1998 to th injuries sustained by him. The matter as reported by Butiram himself, t ereafter, by Sadhuram, Bhimaram & amaram in the‘Police Station and based on that, initially, offence was egistered under Sections 324 & 3 6 of the I.P.C. Butiram was taken to he hospital where his injuries wer examined by Dr. L.L. Dhankar and he repared injury report EXP—2. T ereafter, on 6-1-1998 when Butiram uccumbed to the injuries susfained by him, merg intimation was given~to he Police Station and based on tha , offence was converted into Section 02 of the I.P.C. The Investigating Officer left for the place where the blody of Butiram was lying and pre cred inquest Ex.P-5 on the body of §utiram. Body of Butiram was s nt for post-mortem examination to t A:/laharani Hospital, Jagdalpur, where Dr. V.K. Joshi (PW-5) conducted post- a\\ ol . i m WW H1 200 WW (W) WWW W 31m WWW % a‘rcm W ammm pd u dacn ma due ro head injury. morTem and oine fhm‘ case of ‘h was co ‘ He prepared pos’r-mor’re repor’r Ex.P- m 1 3. Affer complefion of invesTigaTion, arge sheef was filed in The Cour'T of udicial agis’rra’re, Firs? Class S a who in Turn commh‘fed The case To he Sessions Judge, Jagdaipur‘, fr‘ wher'e learned 2'” AddionaI Sessions udge, Jagdalur received The case ransfer for Trial. . he prosecuTion examined nine iT ses. STaTemenT of The accused was ecorded under SecTion 3 of The .P.C. in which he denied The maTeriaI ppearing agoinsT him in Te pros Tin evidence and sTaTed ThaT he is nnocen, he has been falsely implic d in The crime. 5. earned AddiTional Sesions Judge afTer hearing counsel for respecTive aies, cnvicTed and senenced he ccused as aforemenTioned. W l e . e have heard learned counsel for T parTies. 7. lr. Tulsyan, learned counsel for he appellanT, has noT spuTed The 0micidal deaTh of BuTiram. Moreor, Dr. V.K. Joshi W-5) has sTaTed in is evidence haT on 6-1—1998, he cnducTed posT—morTem on The body of uTiram and There was a peeling inju on forehead in The size of 1 %" x 5 . n inTernal examinaTion iT was fou ThaT bone beneaTh injury No.1 was racTured and There was an njur on brain and inTernal hamorrhage. nju was inflicTed by hard & blu ojec. Cause of deaTh was head 1 u W W if (h J M , u m T o iT J p n T 4 T wn s r 31 r a h e uo iT a e , s orT o T T a V T di 1 ve (P h T o 3 ry O nd f iy e Iry rT bT hwmwgsw T ‘ mm, c. “a“ ,..,l.iu;,,..¢,\x g.“ . . mg WW,W,W WW a1 200 WW (WW) man-[W ammm WWW (PW-4) have cafegor‘ically stated aTTacked The deceased wiTh sTone i injury. Therefore, in view of The c esTablished ThaT The deaTh of BuTiram was homicidal in naTure; In order To appreciaTe The argumen 9. mmiiwm agaiwaném r'am in Their evidence That accused Muda Is a resulT of which he susTained head bove medical and ocular evidence, iT is T advanced by learned counsel for The appellam‘, we have scr'u’rinized The e idence. Hindal (PW-2) has sTaTed in his evidence ’rhm‘ on The fateful day Twar Sadhu, Bheema & Bufiram were consuming Salfi aT fhe residence o Bu’rir‘am, in The mean Time] accused ame There, he also demanded Sal i and There quarrel sTarTed beTween adma (Ki accused Muda on which. BuTiram inTervened, whereupon Muda TTacked BuTiram wiTh a sTone on hi head, blood sTarTed oozing ouT of The ’njury and Muda ran away. Therea er, BuTiram was Taken To his broTher hasiram's house. In cross-examin Tion, This wi’rness (PW-2) has sTaTed ThaT in facT, he, Hadma, Bheema & adhuram all consumed Salfi and There as a IiTTle bi’r inToxicaTion on accou T of consumpTion of Salfi and Muda & adma sTarTed quarreling, ThereafT r, Bheema & Muda sTarTed quarreling l As far as compliciTy of The accusec Mr. Tulsyan argued ThaT BuTiram sus and The evidence of eyewiTnesses nc in The crime in quesTion is concerned, Tained head injury on accounT of falling imely, Hindal (PW-2), Bheema (PW-3) & Sadhuram (PW—4) cannoT be believeo on This facT. Wm in 200 Wm (WW) WWW ammm man 81%?!m and There was a scuffle between ’ri Wmiwm awifcmm em Butir'nm ramp +n intgpyene and he fell down, he again sfood up, Thereaf‘rer Bhima & Muda again s’ram‘ed quarrelling. Bu'h'mm fell down, sus‘rained injury and became unconscious. Whereas, Bheema (PW—3) has sTa’red in his evidence Tha’r his uncle Bu‘rir'om intervened and said ’rho’r why you people are quarreliing. When Muda was leaving The place, he aTTacked Bu‘rircm wi‘rh a s’rone which hh‘ on lef’r side of head and blood sfar’red oozing ouT of The injury. Muda ran away. This wiiness also narrai'ed The same s‘rory Tha’r there was a quarrel be’rween Muda & Hadma, Thereafter, between Muda & Bheema, Butiram came and intervened and in that process, he fall down. He denied the suggestion that it is incorrect to say that Butiram sustained injury on account of falling, blood started oozing out of the in'ury and the accused ran away. When Muda was going to his house, he th ew the stone towards them which hit Butiram. 10. 11. Sadhuram (PW-4) has stated about ’onsumption of Salfi and quarrel. When he said that he will go to house, Mu a said that why he will go to house 9n im go to house. Thereafter, Hadma hich Hadma asked Muda that let aught Muda by neck, in the mean ti e, Hadma fell down and Muda also fell n the ground. Thereafter, Muda p cked up a stone which was lying in the itchen garden and attacked Butira as a result of which Butiram sustained lnjury on head.‘ WWW Hmmm 4' , ' -2), Bheema (PW-3) & Sadhur‘am (PW-fl) shows Thaf in fac‘r, Sadhur‘am (PW-4) has sTaTed in his evidence ThaT Mucla aTTacked wiTh sTone, whereas, Bheema (PW-3) has sTaTed ThaT Muda was T1rowing sTone Towards Them which hiT on The head of BuTiram. BuT from 'he evidence of TheserrThree wiTnesses The sTone by which BuTiram susTained injury, was Thrown by accused Muda. Therefore, compliciTy of The accused in inflicTing injury wiTh sTone To deceased BuTiram is esTablished. Learned counsel for The appeHanT c‘ 13 mwm L inference can& be drawn Tha’r rgued ThaT from The evidence of These Three wiTnesses, iT cannoT be inferred ThaT The accused aTTacked The deceased wifh infen’rion To cause his deaTh. On The o‘rher hand, Mr. Shukla supp( 14. 15. Scrutiny of The evidence of These Bheema, Sadhuram & Bufiram wer accused aiso came, fhereaf‘rer havin} quarrei between Muda & Hadma, Ti ThaT process, BuTiram (since dece accused Threw a sTone which hiT on only one injury. All The above circum in facT, ail of Them were under inT quarrel, in ThaT process, The accused l l l WWWTTE‘ZTW nmmm rTed The judgmenT of The Trial CourT. Three wiTnesses reveals ThaT Hadma, e consuming Salfi, aT ThaT Time, The 1 become inToxicaTed, iniTially There was ereafTer, beTween Muda & Bheemahin ased) inTervened and uITimaTely, The The head of The deceased and There is sTan’ces are suggesTive of The facT ThaT )xicaTion of Salfi and There was some ‘lThrew a sTone which hiT on The head of mm,m,m Wm 1n 200 mm (W) mam Karmawraa mmm \, inferred Thu? The accused in facf, c‘ cause his deafh. Therefore, offenc beyond Sec‘h‘on 304 Part-II of The Sec’rion 302 of The I.P.C. and semen susfained. 16.In ‘rhe r'esulT, appea! of The m convicTion and senTences under‘ Sec‘ he is acquih‘ed of The said charge, Section 304 ParT-II of ’rhe I.P.C. f years. I’r is s‘ra’red Tha’r The acc Thereby he has already served ‘rhe . be se’r at liber‘ry forfhwiTh if nof re( Sdl- LR L.c.BHADoo Judge H. The deceased. Ln The ClrcumsTanc as, Trom The above facTs, iT cannoT be ’r’racked The deceased wiTh infenTion To -e againsT The accused does noT travel I.P.C. Convicfion of fhe accused under ces imposed under ‘rhaf counf cannoT be :cused/appeiian’r pari’ly succeeds, his rion 302 of The I.P.C. are seT aside and insTead Thereof, he is convicTed under 1nd senTenced To undergo R.I.‘for Ten used is in deTenTion since 13-1-1998, senTence imposed upon him, as such, he uired in any oTher case. 1?;‘4 Sd/- T.P Shanna Judge s cw m .