CF0000060105 ^islon Bencli IN THE HtGH OOURT OF JUDIC.ATURE AT JABM.FUR. CRIMINM- APPEi^L No.^^lL-. of 1998 CRIMINAL PSKL U/S 374 (2) QF CRIKENM< PIOCEEUKE OODE Aopellant- (In Jiil) l/ Somaru @ Burka s/o Mosu^ aged about 30 yrs^ i. 6^.5^ :hma^ '^%.H.^£..... ^hw^t^^ ........ AAwle Ka.A.R. ^. 2A*t»»./ s/o Mosu^ aged about 25 yrs^ Both resident of vill-Dewada, P»S. Bha%)uri, Distt-Bastar." VS- Respoiidents Sfate of Madhya Pradesh through-P^ S^ Bhanpuri^ Bastar At CRIMIN^L APPE^L U/S 374(2) OF Ttffi CRIMINM* PBQCEDURE CQDE ^ XI-HC-22 OT^I-^T R^Jcb ^II^T sft^icb ^iRa v^ ^ ^^ ^141d4, ^Tt1-y<i<o, i^<vt^ll< . ,^^^^a^ l^^r' WH^il ^hW^h 200 . ctlw\^^1 wraf ^ fe^ TfW$R ^T3iFa^ 3^?T DIVIS10N BBNCH: HON»BLBMR. L.C. BHADOO &i HON^BLE MR.DHIRENDRA MI$HRA, JJ 24.02.2006 Smt, Savita Tiwari, Advoc| Shii U.N.S. Deo, Bhatia, Paael Lawyer for fhe Oral judgiiient dictated 04 Additioiial St^te/ accused/appellaiits Soraaru @ legality & correctaess of tiie learaed Special Judge, Jagdalp| fcte fbr the appeUaiits, PubUc Prosecutor with Shn M.P.S. 'respondent. Dafe. PCTLL.C. Bliadoo^J. • By this appeal uiid^r Section 374(2} .of the Cr.P.C. Burka & LakhBiu have quesfioned fhe judgmeiit of conviction aiid order of sentence dated 24,2.1998 pass^dm SessionsTrialNo. 156/97 bywhich ar after holdiag Uie accused/appeUaiits guilty for coniniittiag piurder pj[ Soniani @ Bulku convicted eacli ofthe accused under Sections 302 &» 450 of the Indian . Penal Code and SGntenced each of them to lui^ergo Hnprisoiiment for life .and RJ. for two years, respectively, It wa^ shall run coueurrently, The prosecutiQn ease, ioj nephew of deceased aiid fher| deceased and accused persoi^ Soinaru @ Bulku aad his wife their house, accused/appellaa haad mid accilsed/appellaat also prdered tliat bofli ftie sentences bnef, is tliat accused persoils are the ? was SOBIC land dispute between the is.0n28.1.1997at about 8.00 p.m. Kade @ Kudgudin were taking duiner in Somaru @ Burka canymg axe iii liis ni canying forcli & club ui his ['^ ^fo^ ~F XI-HC-22 STT^r^T foi<=h Sf^ 5fr>^ict» ^f^a 1.^ '•^ ~5^ ^l^ltd^, ^xii^^<o. fa^ji^< 3n^r ^^ ^l^^f^hNS^""*""""""'"""^"""""'^ 200 i^^' haiids entered fhe house ofSom^ru@ Bulku, accused Soinaru@ Burka assaiilted fhe deceased witli fhe ] and coininitted his murder. WU Bulku tried to ihfervene, she 47as also aftackcd; therefore she being fdghteiied raii away aad on the to fhe viUagers on which Suldil^l (PW-1) gave m.erg iathxiation (Ex,P-l) to the PbUce Station Bhaapun; House OfEicer, PoUce Station Bb prepaiied the Paachnama (Ex,P-j @ Biilkii. He also took into pos| soU from the place of occuiTenc^ 5, Accused Soinaru while ia (Ex;P-8) and ia pursuaace of] ia pursziance.of that a wooden Ex.P-11. Lungi of accused 803 cM^f<rf^li +iH<yff "^ fe^ <fa^i< '^ 'sti^Pqr 3T?^T laxe and accused Lakhinu with thc club ^n Kade @ Kudgudui, wife of Soinaru @ |next day Bioniuig she gave uiforaiation 1Receivuig this m.erg iiitiination, ^Station anpuri registered the F.LR, (Ex,P-l), fcft for the scene of occurrcnce a^xd after giving notice to fhe Paiichas ^) of the dead body of deceased SoiDiaru ^ession fhe blood stained soU ao.d plain mider Ex.P-4 aad a shawl under Ex.P- pb.e poMce custody gave inemorandiuii that weapon of offence i.e. axe was recovered under Ex,P-9. Accus^d LaMmiu also gave inemoraaduin aad cliib was taken io.to possession uiider lani was taken iato possession under Ex.P-12. Bao.iyaii was taken io^o possession Tuider Ex,P-13. Body of deceased was sent for postEQJorteiii exaDiinatioii iinder Ex,P-18 to Primaiy Health Centrc, Bhaj^puri, where Dr. K.S. Paikr& (PW-4) <s. . -'!11 '1-- '. 1 '. 'p ' .1 ' • ! '.' ' • •' - conducted fhe posfmortein 011 ^he body of deceased Soniaru @ Bulku and prcpared fhe report Ex.P- l^, As many as 15 iticised wounds were fpund on the body of deceased $omani @ Bu]kii aiid tliere was swelliag on the chest Siteplaa(Ex.P-22) After ^>m.pletioii of inves |was preparcd, ktigatiou, charge sheet was filed in tiie Court of leaiiied Chief Judici^l Magistrate, Jagdalpur who iii tzini [Tft^ y^ r 7 XI-HC-22 3TT^T'9FT feT1lch ^TI^?T sh*iich ^f^a ^ c -^^-^nzn^zr, ^Tfi^^Ko, [®i<ni<i^< sni^r ts^? ^1*<W $b^8cb ' " ' """"""°^T^ 200 '1^(^""""""""""""""" Ju^lge prosecujtion falsely |mpUcated committed fhe case to leamed leanied Special Judge, JagdalpilLr The prosecution ia order to es| persons exam.iiied six witaessei rccordled by leamed ^pecial which fhey denied the iiinocent and have been Leanied Special Judge PrQsecutor and counsel for ac< the accused persons as mentio^ec Homicidal death We have heard Smt SaviB SIui U.N.S. Deo.Addl. PubUc Pt Lawyer for the State/ respondei3|t As far as mvolvement of| question is concemecl, leamejd argued fhat 15 incised woundjs found on the body of decease^! coutusion on the chest accused/appeHant Lakhmu, as| with chib, whereas, accusedj assaulted wifh axe, She furth< evening aad fhere were uide^endej witness has been examiaed by accused/appellants have been aBimosity arismg out of land d|spute Thereffore chH?<rt^ll 'HFI^Jf'? f^^ <Fst^l< ^T ^rf^fTT 3TT^T ^essions Judge, Jagdalpur froia where received fbe case on traiisfer for trial, |:ablish the charge against fhe accused Statenients of accused persons were under Section 313 offhe Cr.P.C. ia evidence aad stated that they are in fhe cnme, after heamig the Additional Public |used persons convicted aad sentenced 4ed above m Para:-! of this jtidgment Soiiiaru @ Bzilku is nof m dispute. |^ Tiwad, Advocate for the appeUaats & ('oseeutorwifli Shri M,P.S, BUatia, Panel jtlie accused/appellaiits in the crune ia counsel for the accused/appeUaats caused by sharp edged weapon were Somaru @ Bulku and there was one ?, no offence was made out agalnst he is said to have assaulted 'deceased Somaru @ Bhurka is said fo have ;r argued fhat iacident happened ia fhe witoaesses, but no nidependent pie prosecution. She further argued that piiipMcated ia a false criine on account of [Tft% ^fe^' uide^endent r XI-HC-22 's^ "^^rraTQ^T, ^WTS»i^ray 3^?r 'q^ ^TO^lT^We^ '^ 200 'I^^I' 3TiiRT^T f^Ti?F^?]^I ^RJ^^rft^ ^\^ c- + 3?T^T ^RTl^R 'dt^T -l1. On the other hand, leamed peo, wifh Shri Shatia, Paael La^yer for fhe Sfate supported the judgment of trial Court. In this case, the witness namjelySukhlal (PW-1) 65 Arjun (PW-2) liave tumed hostile aiid fhe coiwicti^: <|>f PW-6 Kade Bai, wife of deceasedj ^hat on.the fateful evening she aad ^ier husbaiid were takmg diiiner, at j±iat tiine accused Somaru holduajg axe in his hand aiid accused L/akhmii holdiiig club & torcli iii started attackmg her husband w ^ttacked, she also received injuries Hler evidence staiids coiToboiated PaLkra, who has stated ui his postmortem on fhe body of. decea^ed aad found that tiiere were 15 lilcised wounds aad swelliag on tlie ^loodwas preseht Injuiy Nos, 1 to ^dged weapon aiid Injiiiy No.l6<wa^ pccipital, temporal aad nasal bone^ i?yas also found cut aad 2nd & 3rd fouad fractured. Deceased died oni ^^trn^1i "sw^ ^ fecsir^fe^R ^^lNFT3Ti^T iAdditional PubHc PrQsecutor Sliri Mi is based on the,splitary evideuce Somaru @ BiiUdr, ^4glias sfated fciis haads eutered the hoiise and [th axe aiid club. Slie was also \aad was alsd inedically examiiied. |by the evidence of PW-4 Dr.K.S. bvidence that he condiicted fh.e ^hest ia the size of3w circle, clotted 5 were uiOicted by sharp mid blunt mfLicted-^Lhard^arid hlunt 'object JCM^M^ F^ were foziaid '@^rt, Braia Bicmbrane ribs of right side of fhe chest were account ofhemorrhage aad sliock. beath was homicidal in nature, Do^tor has fiirtlier stated on 29.1.1997 Jat about 2.50 p.m, he also exaffljmed Kaade Bai, wife of deceased tnjuries on her body, fhere was a 1 cm, oth.er lacerated wound in tfie Bomaru @ Bulku and found five lacerated wound in the size of 1V2>' ^ 1 size of3'?xlcm, even the left'ear la< rated wouad was m fhe size of lcm .&J^C3ll-Gn4h£^ ^ 1^1 ^ar. Ttiere was swe11rng_on tlie left^^e of A *\r: .\ ^ . | TTT^ qi<31M "-) T XI-HC-22 ^TT^T^T ^ich ^n^?[ 5bHicf»«%^ Roghaa/- ^' ^ '^^'^TPTRW. <E$Til^^<s, M<rtl^< 3TT^T M4cb ^iN^fi w^r^ "W!, 200 •^^r' [t^¥T <flTO?T ^<IfW ^f^a —^ caiised by sharp and' bliint obj from flie fact fliat she also susl stated fhat accused pcrsoris ^ Kade Bai is coiTQborated bv thel to disbelieve flie evidence of K^ <=M^t<yl<fll. *1H<!lf *? FS^ iPil^K ^3rf^m3?n^r face aad aa abrasion ui cu'cle <|>f3"? on the chest. All fhe uijuries were was a motive behiad fhe assavl fhere befaveen tiie deceased an<3 comiiiit the miirder of Somaru ?ct. Presence of Kade Bai is estabUshed ^aiELed iajuries aad she has categoricaUy ttacked her. Therefore, tlie evidence of 1 medical evidence aiid there is no reason ^de Bai which iaspires the cx^nfidence of the Court. As far as ttie non-exaLJnniation of uidependent witnesses is conceiiied, Kade Bai has stat^d fhat nobody caine ui the house and moreoyer, Kade Bai is the inju^ed eyewitiiess to flie uicident aiid fliere is no reason to disbelieve her te^tmiony, She has also stated fhat fhere t ia question, as soine laad dispute was accused persons. As both fhe acciised/a^peUants caaie togeflier and attacked together fhat too nierctlessly> a^ a result ofwhich Soniaru @ BiiUai died mstaataiieously, therefore, titi^ mtention of the accused persons to @ Bulkn was evident aiid writ large. As such, we do not fiiid any. illeg^lity arid tafimiity ia fhe judgment pfthe trial court aad the same is bas^d on tile legal cvidence, In the result, we do notfijad auy substmice ia. fhis appeal, same is liable to be dismissed and it is, Sd/- L.C, Bhadoo Judge |accordiiigly, dismissed. . Sd/- DhirendraMishra Judge [Tft^ ^R^^