afe. HW,WI§,W Wm vi 200 mamm- (W) Hm mafaam #Lé mmiwm ‘ %a'mar%¥l Sessions Judge, Bemefr'a, Disfricf Durg in 5.T. No.134/95 whereby lear‘ned Additional Sessions Judge offer ding accused/appeHan‘r Jaddu guilfy for commission of offence under Secf ons 302 & 323 of ‘rhe IPC and accused Jagdish & Jag‘ru under Secfions 3. 2/34 6i 323/34 of fhe IPC, senfenced each of them To undergo RI. for life and 1'0 pay a fine of Rs.200/-, in defeqif of paymen‘i' of fine To fur her undergo R1. for one year and RI. for 6 monfhs rapec‘riveiy. The case of 1‘he prosecufio , in brief, is Tho? Jhunia Bai was having Three daughters namely Phoolkesh ri, Jhamanbai & Ganeshiya, ou1' of fh‘em Ganeshiyabai had already died and Phooikeshari was issueless. Four acres of land of Jhunia Boi was parTi‘rion d in equal share'befween Jhamanbai & Sukhchand, who was fhe husband f Goneshiya 3ai, sisfer of Jhamanbai. There was a dispufe between The regarding The land and on The faTeful day J'hamanbai cuT The bush Tree whereupon accused Sukhchand (since deceased), Jagdish & JagTu came Th laThi and assaulTed Hemchand (since deceased) as a resulT of Which he l down, ThereafTer accused Jaddu saT on The chesT of Hemchand and p ed The neck wiTh fhe hand as a resulT of which Hemchand died on acc ‘ of asphyxia. Accused persons also aTTacked Jhamanbai as a resulT of ich she received simple injuries. The maTTer was reporT by Surpanch I i Iindas (PW-4) in The Police STaTion BemeTra whereupon FirsT Inform Tion ReporT (EXP-14) was regisTered. ‘Buring invesTigaTion accused JagT gave memorandum (EXP-1), accused accused Jagdish gave memorandum ‘ J'addu gave memorandum (Ex.P- V 3 @ m h l ' l r s o 1 " h a [ .XI—HC 78 mm wt 200 mm (W) WWW ammm WWW , mmirwm ,_;,_ v #aimsm g e pangrigs. Sife plan (EXP-21) was prepared by fhe Pafwari. Injuries of J’hamanbai were‘examined by Dr. K Tiwari (PW-14), who prepared the injury repor‘l' EXP-23. Merg infi on (Ex.P-26) was given by Sarpanch ‘ i Naindas (PW-4) 1'3 fhe Station (EXP-4) &.accused Sukhchmd memorandum (EXP-5) regarding the lafhis and in pursuance of fhaf ia+ s were recovered under EXP-6, EXP-7, EXP—8 & EXP-9 a‘l‘ Their insfcmce. ari of injured J'hamanbai and one towel were seized under EXP-13, InquestSExP-l9) on the body of Hemehand was prevared by the Invesfigufing Off cer af'rer giving noi'ice (Ex.P-18) fo 'rhe se Officer, Poiice Sim-ion Bemei’ra. Dead body was senf for posfm rtem under Ex.P-28 fo Governmenf Hospifai, Bemefra where Dr. MM. Deodhar (PW-21) conducfed postmortem; prepared the report EXP-41 and opined that the cause of . dea'rh is asphyxia due fo sfranguia'ri n. Affer complefion o’f invesi' ga'rion, charge shee'i was filed in the Court of Additional Chief Judici l Magistrate, Bemetra, who in turn committed the case to lea'rned Se ions Judge, Durg from where learned Additional sessions Judge receive the case‘on transfer for trial. The prosecution in order to establish t charge against the accused/appellants examined twenty one witnesses. atements of accused/appellants were recorded under Section 313 of Cr RC. in which they denied the material appearing against them in the pro ecution evidence and stated that they 'ar‘e innocent and have been falsely i plicated in the crime. Accused persons examined Ferha (DW-l), Kanwar / 5, / ingh (DW-2), Durg (DW—3) 6i Jagdish 0. . m i u h t mm (W), ‘ mmw mmm WW WWR $aifanm WWW ¥ GS e enCe WI ' l and expired. Learned Addi‘rional Sesshlms Judge affer hearing fhe argumen'rs 0f ' learned counsel for The respecirive parTies, convicTed and senTenced The W‘LIL accused persons, as aforemermo hed. We have heard Mr. V.C. 1D1'1'alwar, Advoca‘re for fhe appelian‘rs and Prosecufon for The respondem' Stafe. pufed fhe homicidal deafh of Hemchand. Mr‘. U.N.$. Dec, AddifiQnal Publiq Mr. Orfalwar has no? di V Moreoverj‘as per evidence of amanbai (PW-2) & Sadhelal (PW-12), who witnessed ‘rhe crime in ques‘rio as also from The evidence of Dr. MM. Deodhar (PW-21) who conducte The posTmorTem and opined ThaT deaTh of Hemchmd was homicidal on ace unT of asphyxia, iT is esTablished ThaT The deaTh of Hemchand was homicid i in naTur'e. As far as invoivemenT f The accused/appeiionTs in The crime in quesTion is concerned Mr OTTa war argued ThaT as far as accused Jagdish & JagTu are concerned There Isi no aiiegaTIon agomsT Them ThaT They were sharing common mTenTIon wn'h J‘addu To cause deaTh of Hemchand He aiso argued ThaTas per ewdence of - nJur-ed Jhamanbm (PW-2), who is The wife of deceased and wiTnessed T e crime, in The firsT insTance accused Sukhchand (since deceased), J'a dish 6: JagTu aTTacked Hemchand wiTh The iaThi as a resuiT of which he f ii down and ThereafTer, accused Jaddu saT on The chesT and pressed The n ck. Therefore, from The above evidence iT i i XI—HC—~'78 WW,W,W mm ai 200 Xl-H€—78 W m wL 200 WWW r5? cause of dea1'h was asphyxia as a EXP-41. Therefore, if The evide WWWiwm am'Eam Iresul‘l' of sfranguia‘l‘ion and his reporf is k doused by accused Jaddu. As such, we are’of‘ 1‘he considered opinion fh as far as fhe convicfion of accused Jaddu under seation 302 of IPC s aoncerned, The same is based on legai clinching evidence and finding of he frial courf fo That ex'i'em' does no1' requiresany inferfe‘rence by 'rhis C ur-f. accounf of sfrangula'l'ion, which J So far as The accused J gdish & Jagfu are concerned, as per evidence of Jhamanbai (PW-2) qua rel sfarfed on fhe ground Thar one bush free was cuf by J'hamanbai, where pon, accused Sukchand, Jagdish & Jag‘i'u i came with ia‘rhi, assauiied her hus and Hemchand, as a resuif of which he fell down and fhereafi'er, accused Jaddu saf on his chesf and pressed the neck. Therefore, on fhe facfs if c not be heid Thai- fhe accused Jagdish & Jagi‘u were sharing common infen‘ri n wi'rh accused Jaddu fo cause deafh of Hemchand and as such, their conv cfion under Secfion 302/34 of The IPC cannoi' be susfained. Bu? fhese a cused persons a‘H'acked Hemchand wii‘h la‘l'hi as a resul‘i of which he susi'ai‘ ed simple injuries, fherefore, 1'hey were liable lo be convicfed for commissi n of offence under Secfion 323 of IPC for causing simple injuries 1'0 He chand, accordingiy fhey are convic'red ”under Secfion 323 of fhe IPC. mm (W) of or. MM?“ Deodhar (PW-21) a J'hamanbai (PW-2) is read foge'ih r, Then if show fhaf Hemchand died on w e XI—HC—78 WW,W,W Wm H1 200 3mm (W) WWW mama-rm » WWW mwiwm éiafmm ~__?(‘ So far as convic‘rion of accused Jagdish & Jag‘ru under Section 323/34 of PC is concerned, fhe s wifness J'hamanbai (PW-2) fo e is based an The evidence of injured m also The accused persons have assaulfed and also on The evidenc .of PW-12 Sadhelal who wifnessed fhe crinie in quesfion and fherefore, 1' eir conviction under Sec‘rion 323/34 of IPg‘vis based on legal clinching evid nce which requires no inferference by fhis Courf: However, conviction of used Jaddu under Section 323 cannot be sustained as there is no eviden e to show that he was sharing common intention with oth’er accused pers to cause simple injuries to Jhamanbai. In the result, the appeal fi ed by accused Jagdish & .Tagtu partly succeeds and their conviction Lind Section 302/34 of IPC and sentence imposed upon them under that sec ion are hereby set aside and they are acquitted of the said charge. H wever, their conviction under Section 323/34 of IPC and sentence impo ed upon them under that section are maintained. They are further con icted under Section 323 of IPC for causing simple injuries to'Hemchan and/lsentenced to undergo RI. for 1 year. It is stated that accused Jag ish 6: Jagtu remained in custody w.e.f. 26.10.1994 to 25.8.1995 and the after from judgment date i.e. from 30.9.2000 up to 23.6.2006 when tit were directed to be released on bail. Therefore, in, view of the fact t they have already undergone the sentence imposed uponrthem unde Sections 323/34 & 323 of IPC, they need not to surrender and their bail bonds are discharged. . E‘i’ s.. .. m o c o a W 3am, m, \\§ As far as The appeal of ac} senfence under Secfion 302 of IPd Sdl- ‘ L.C.BHADOO Judge MM :used Jaddu agains’r the conviction and is concerned, The same is dismissed. Sd/— DERENDRA MISHRA Judge Wm Wt 200 mm (13W) mmm awmm mmm mmnwm %aifcmam%a 4r k