B8B CFoooobeisss" isron Bench (-r,m,naf) IN THE HIGH CODRT OF JUDICATUBE AT JABAI.POR. CRIMINAI. APPEAL OF 1997. U-T7 ^•—^r. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. Manga.SKam. son of latu, aged about 45 years, resident of village Gadhsiliyara, Police Station Keskal, District Bastar, M.P. ... APPELLANT. ACCUSED. (IN JAIL). ^, rt7 • T."'' ,.,.,,;teto"?s firs fin, AC" V E R S U S. The State of Madhya Pradesh, through Station House Officer, Keskal, District Bastar, M.P. ... RESPONDENT CONVICTION SENTENCE XI-HC-22 311^'SI K-UT. snt?i gnTWdf^l ^^ ^lPlRTf, ^ftWIS, i'Ktl-ay •@? ^.A^.^^ *ii*<nraiic»! sn^rTOnwHf^i Divjsjon Bench: - Hon'bte Mr. L;C. Bhadoo and | Hon'ble Mr. Dhirendra Mishra. JJ. 13-2-2006 . Mr. Anand Verma, counsel forfthe Mr. U.N.S. Deo, AdditionalPut)lic Oral juagment dictated on Da4 Per L.C. Bhadoo. J: - By. this appeal under Secti^n Procedure, accused/appellant Mar($ correctness of the judgment of convi|ction 1997 passed by the Additional Ses^ions No.465/95, whereby Isarned Ad3iti<>nat accused/appellant guitty for comrrji convfcted him under Section 302 of undergoimprisonmentforlife. Case of the prosecution in bri| was a festival of Naya Khani, on Vilfage: Gadhsiliyara, Police Stationt Mangau and demanded mutton 6n| cooked mutton for themseh/es 'you On this, deceased Shobharam said Narendra is residing with myfather ^ not proyiding rice", whiie saying so, towards Mangautp assault him. Ac) ^\<i\V\<H '< <fl^^? ^ [s^ •^-3ii:gq sn^r appellant. Prosecutor forthe State/respondent. 374 (2) of the Code of Criminal (gauram has questioned legality and and order of sentence dated 21-4- Judge, Kanker, in Sessions-Trial Sessions Judge after holding the- isston of the murder of Shobharam, <he Indian Penal Code and sentenced to i|ef is that on 3rd September, 1995,there tl|iat day, deceased Shobharam went to Keshkal to the residence of awused which Mangau replied that they have Igo and take mutton atyour residence". ^o accused/appellant Mangau 'your spn ^nd taking food there, even then you are t^e pickedupa wooden plankandlujshed sused Smt. Mangobai came in b^ftween >t XI-HC-22 T%,»t.»!^ '3^ 74wif1<t, »Ti1-H'f?,:'fsRiRiy 3TI^I^7 'feira'•B^YT WqWtTft^ tiiiiKl;:;.:;....?._;fei.,..^ •qiwar -^Ni*"" 3?-A . w^r^RfTwgf^i 2L 'WlfwftTWRJf •?fe^ tf^Tt ^•aipgirsn^r and the wooden plank hit-on tfie wrist ot MangoDai, which enraged the aceused persons, they picked upjaxe & club and assaufted the deceased as a result of which Shobharam'die registered. The investigation w^ |1. The matterwas reported by Lahar Singh to Police Station: Keshkal on wtjicb merg intrmation (Crime No.136/95) was s taken up and at the instance of accused Mangau, axe was recovered urjder recovery memo Ex.P-17 and clubwas also recovered under recovery afltergjving noticestothePanch^ memo Ex.P-17. The Investigatirig Officer is prepared the Panchnama (Ex.P-13) of the body ofShobharam. He also pr^pared the site plan (Ex.P-3) oftheplaceof occurrence. Ptain soil and blo i>d stained soil were'taken into possession under Ex.P-14 fromttie place c(f occurrence. Blood stained clothesofthe deceased, which were sent by Ori'rimary-hiealth Centre, Keshkal were taken into possession.under Ex.P-5. plood stained articles were sent to Forensic Science Laboratory, Raipur, frcjm where the report Ex.P-11was received. The body of Shobharam was sjent for post-mortem examination to Primary Health Centre, Keshkal, wher^ Dr. D.K. Bisen (PW-6) conducted post- mortem^and opined thatdeath|isdueto neurogenic and hypovelmic shock due'to the injuries caused on th^ body of the deceased. After completion of im accused Mangauram, Smt. M^ Sessions Judge, Jagdalpur, fr< istigation, charge sheet .was filed against ngobai & Narendra in the Court of^udicial Magistrate, First Class, Kank^r, who in turn committed the case to the where learned AcMitional Sessions Judge, Kanker, Teceived the case on tr|insfer for trial. The prosecuh'on in ord^r to establish charge against the accused persons examined eight witn^sses.: Statements of ttie accused perso'ns XI-HC-22 TSI'^IFTRPT, giTil'M'lti, facliyy angw^i V-.-V'h 3T!^T ^!t^ ^r^ lu.: WlffhW* G22fi.:.3.<[S^ 3n^!'?^giwHfett were recorded under Section 311 material appearing against them. ^PlfepflTt!l»Rif•?1%^ •<f5 •^sd^naT!^!. 3 of the Cr.P.C. in which they denied the Learned AdditiorialSessio^s Judge after hearing the arguments of A.G.P. and counsel for the aecus^d personsconvictedthe accused/appellant as mentioned above, and howev^r, acquitted co-accused Smt. Mangobai & Narendra. We have heard Mr. Anand further stated that on the fateful deceased as well as the accused meals together, thereafter when Verma, leamed counsel fpr the appellant and Mr. U.N.S. Deo, learned Ad<|litional Public Prosecutoron behalf of the State/respondent. The homicidal death ofShc|bharam is not in dispute. As far. as involvement of the accused/appetlant in the crime in question is concemed.all other^itnesses have turned hostile except Jeety (PW-5) who is the son ofthe dec^ased. He has stated in his evidence that on the fateful dayat the fateful tintie, he was at the scene ofoccurrence and he saw the accused persons a^saulting his father Shobharam. He has day, there was Naya Khani festival, the persons consumed liquor, they had taken ihobharam, his father, demiahded mutton, some altereation took place an|d in that process the accused persons assaulted Shobharam. Learned frial Court has ob^erved thattheevidence ofJeetu (PW-5) is recovered at the jnstence Of the i that, therefore, involvement of th| established. 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Itl^lte ZZ-3H-K -4... T" XI-HC-22 '^q^'iraRFT/'S^TiIS, 'teTHS1 sn^r^ h-\\<» CT^5I ^^ ~^^ li^CTfWKicb &.:..&.:.CQ^. 311^; ^RIW: ^ite s~\ In view of the above facts, it petty matter and when the cleceaset) with wooden plank, whi'ch hit on tt'je Mangobai that enraged the accus^d assaulted the deceased with axe. Jt pre-plan and the accused assaulted] sudden quarrel after picking up the intention of the accused to, cause However, it can safely be inferred when the accysed was assaultirig tht knowledge that by assautting with Shobharam. appears that the quarrel started on a 1 tried to assault the accused/appelfant wrist of otheraccused namely, Smt. persons and the accused/appellant tierefore; there was no pre-meditation or [the deceasedin a heat of passion in a ^xe lying nearby. In.the cireumstances, fhe death of Shobharam was missing. Ifrom the facts ,and cireumstances that dec^sed with axe, he was having the axe he may cause the death of Therefore, from the- above appellant under Section304 Part-| cohviction under Section 302 ofthelj In the result, the appeal pa) allowed. Conviction and sentence which is not disputed by Mr. U •» Prosecutor.. Therefore, the accused Sd/- L.C.BHADOO Judge •ti!flri''i)-i tiCT?if'? fs^ •d^R?re i; srfi^iT sn^I facts, offence against the accused/ of the I.P.C. is established and his P.C. cannot be sustained. ^Uy succeeds and the same is partly kwarded to theappellant under Section 302 ofthe I.P.G. areset aside.inste^d thereof he is cbnvicted under Section 304 Part-11 of the I.P.C. and sente|iced to undergo imprisonment forten years: The accused/appellant iss|iid to be in detention since 4-9-1995, IN.S. Deo, learned Additional Public |ias already undergone tte sentence. It is directed that he be set on liberty fo|lhwith, ifnot required in any other case. / Sd/- DhirendraMishra Judge [^^ ^for^