^ to^ Checked&Veriffed,20l3 Owhion 8sr.ch ( rimnal^ IN -EHE HIGH GWR'C OF 3TJBICA2'URE AT JABALroR V^^'S'of 19916 Criaiaal Appeal Elo* es'psx^ss ACeBSBB ^KS^) » 'EEiaa'yi Ealctey S^O Stiri. ^'S.alaafflaar PEB<3e:s?» a®edalsowfc 45 / years,0ld Sesdaul NafcayJiagdalpur cU.strtct Sastar (HP)^ ! Versas ~ r KBWBSSS83 HtQiSECTOOR ./ i Ibe Statie.of Madbya Pradesh, t2wougfa Q££ieev»lw-saascge, SolS.ee Station Baa»^»atBl.st.ri.et -Bastar (M?) ! ^-:':: -.1./'': • .' Ooavletioa U/Sectlon 302 I*P^2,^*--^ SenteBC® •^" •' Llfe^Bnpriai.oamsit HatORaNBGM ©FrAE?BA&UHE®S SBGEKiH 374 (2) OP ©£•£>» C» h I -. / 'n*-. . •'s^—gte^^gS •.f ''J: ^^?^^^^Si^ XI-HC-2Z 7Sr'^IFTI?m, i}'dl'y'ls,.l«lcll'M1,< KI*<MI sh*ii<*i •wf -2UB- SIR^I^R W sn^i' ^•H W^T sn^i ^grat'Hfer DIVISION BBNGH: HON'I &HON' HON'BLtSHRI LC.BHADOO B(-E SHRI DHIRENDRA MISHRA, JJ CSIMUWLAPP6W,NOJ61S^>F19S» Appellant Respondent Tri^wth PtBtdey Vd St^te ®fMadhya Pr«la* Smt. Klran Jatn, teamedcoun Shrt U.N.S.Deo, leamed G.A. Lawyer for tha respondent/State. ^el for the appBltant. |«ShShriAltfiil Mishra, leamed Panel ORAI.J!VD(tMENT (U9^3^W PerJ.,C, By this appeal under Swtto^t C^xte the acet.tsad/appeltant has of the jmpugned judgment ctated 10)' Sessions Judy, Jagdalpur, Basta|- leamed Addltlonal Sesslons Juc^ej guitty for commisston ofthe offiBnce Code sentencedhimtoundergoimpt 2. ^^aseofthepres9cution,in First Infomtatien Rwort'P-4 on 05,|C ^diee aation-^ Bodhghat to the ^flncfflt^rfiii^ hpusipi. fte beard the-s^fe qiwtci'fli imw'? fttzt <f«lt^l< ^; 3lN*I 3flt?I . 874(^ af th®Criminat Precedure qujs^ioned Uie legaltty and eorreetness August 1996 passed by Addfttonal ta S/T. N0. 144/96 whereby e after hot^ng the aGcusad/appellant (inder Sectton 302 of tha Indlan Penat ^Isonment fer life. ~ btfef, tof, js that RW-4 Patinulat lodged ths 03.1996 at about 15.10 hjoursin th& thaton that drt®h< was silttog h vns''saw,ast»e'on whieh tie came efffect f' [^^f^ XI-HC-22 'ysi '-^wwi, rit0'y<il», faywy ^^ 3TI^?iI f?;iy';3ii^w »CTN?'^iN Cy-^,- /^/S'/^C, out and sawthat there was altercsti^ii bctweai aceused Trinath Pandey and Jabbar. Accused Trinath attackfed Jabbar wilh axe on his head as a resutt ofWiich Jabbar fell down an Thereafter, Trinath agaln assautted ()n fhe head of Jabbar'withaxe. He rushed toward that side to save Jabt^ar but Trinath ran away and he saw qiral<n^li '^3^ ^ ^^ <f<i]+^i< '^sipOTsii^r |1 started raising cries "save, save". that Jabbar was lying dead in the ve 117/96 for the olfenee under ^action fandah. Bloodwasoozing outofthe head. Recewing this report Station H|ouse Offleer registeretl Uie erime No. 302 of the IPe, left for the scaie of occurrence and prepared the Pancjhanama P-7 &f the dead body Qf Jabbar after giving notice to the Paijichas. He took into possession the weapon pf offence - axe from the ^ceused Trinath under P-5. He atso took into possession the bleodstafrie^l soit andplsin sml ftom the (riaca of occurrence under P-6. Dead body ©(aminationto IVlaharani Hospttal, Vinay Kumar conducted postmortem ef Jabbar was sent for postmortem Jagdalpur under P-8 ^iere Dr. K. on^the body of Jabbar and pr^sared the postmortem report P-9. After c^mptotion ofthe inveatigatton charge sheet was filed against theaccused/a|ppeVant In the Gourt of Chief Judteial Ma^strate, Jagda^ur wha tn turo cjoininitted the case to theSesslons Judge, Jagdalpur from where teamec| Addltkmal Sesstons Judfle, recaved thecase ontransferfortrial. 3. Prosecutton in order te e^tablish the eharge agatost the aceused/appellant CTamined 5 witne^ses. On the other hand, statement ofthe aecused was recorded under Stection313 oytheCr.P.C, fri whjch h® cleniedthematerialappearingagainsthimtheintheprosecirtionevidenee and stated that/he is innocent and •- / crime. Leamed Ad<Uonal Sessions has been fateely impNeated n the Judge afterdearhg counsei for the [^t^ ^sS^ XI-HC-22 'SV '^(FIR^T, e>Tt1'y<l<», fat'll+iy flWCTI WW9i^x.:^;../$:/£/% 289- fa'btiST' ai^Tw. ft'rioi'ang^i ?t)^lch ^<1 chl<4i^l4l'1 tfffldi' ^ ^St <f^T^.l< ^siPtPTan^l respective parties convicted and mentioned in paragraph -1 of thfs ju 4. We have heard Smt. Klran behalf af the accused/appeBant an< Shri^thil Mishra, Panel Lawyeron Isentenced the aecusecyappeltant as flgment. Jaln, leamed counset appearing on Shri U.N.S.Deo, ©ovt.Advocate with behatfofthe State. 5. HomicMal death of deceasetl Jabbar is not h dispute. 6. As far as involvement of th^ accused/appsltent hi cemmttthg the munter <rf Jabbar i& eoncemad, PVV-4 Ranntiferf; tfte? maln ntee%~who lodged the FIR in the poltee staUc|n has n<rt supported the ease ofthe prosecution. He has stated thi*6n hearlng 8ie eries that Jabbar has died, he went towards the house<?f Jabjaar and saw that Jabbar was already dead. He has furthArstated that tlte accused was on the n»dsnd there was erowd. He has stated that h|B <Wd not see the aecusedassaulting Jabbar wlh axe and he had also n|st heard the voice ef awsused Trinath. This wtness has been declaced ho^tite by the preseeution. He has'ftirttier stated that though the memo of P-p bears hts slgnahire but theaxe was not taken into possessiontiwn the eeused In hls presence, tbergfore, thte wtness has not supported the pro|seeutton case. PW-2 Shankar fci his evideneehasstatedthathesawtl^eaGcusedassaulUngJabbarwithiae but in hte eross-examinatjon he h^is statedUiat hedid not diselose tha above facts to the poliee at the thi|ie-ef gwing evidence. He has further stated^that he does not tffiow as tot his case diary ^atement D-1. |why ail these things are not wKten in ffem th®perosal of the case dlary statement B-1 it/is evfdent that tftts witness had nat tfated befBre the •• / (Xriicethatftewitnessedthecrima n question. Simjlar is the evidence ot 5^c" [tft®^34 XI-HC-22 sn^i^i f?ii»:3Tr^r ^.Hi^ ^f^fl '-i-.a&y ^ -<'.^- f" ^5T •<ll'41Cl'il, 9fllfl'IS, 1««11'U1< ^.C:X..d.:./.yL^Z?^ PW-3 Lakhma vrfiom hls examinatioit-fn- accused attacking deceased wifh ax< cross-examination he has stated tha< only after the incident was over, he Moreover, iri the police statien tn hte i stated that he wtnessed the accusAl Therefcre, PW-2 Shankar and PW-3 thdr Court evideoce in material parficulars does not inspire eonfltfence as no case that they witnessed the accusedi it-fn-chief has ^ated that he saw Vh'e However, in paragra(* - 3 ofhis he dkt nrt wttness the assauU and |sawthat Jabbarwas already ctead. jsasedary statement D-& he has not attacking the deceased with axe. -akhma hawfi made improvements Iri and as such their evidence has supported the prosecution lassautting deceased Jabbar. wtlness 7. As far as recovery of ,W6 a^e m question from ths accused is concemed, there is no report of t^e Serok^ists or Fofensie Science Laboratory on recordto fce e'tfeet <hat e axe in question which was taken into possesston fromtheaccu^ed was stahied with blood aid that too ofthe btood group ofdeceased J^bbar. Therefore recovery afthe axe in question from the accused Is also ^f no conse<ytence. 8. tn view of the above, WB ar^ finding <rf the trial court Is not based as such the same cannot be susts(ined. Accordtngly, the aecused is acquitted ofthe charge Uneter Sectkfn 302 ofthe IPC andthe sentence imposed upon him is set aside. < • ' '"•'•. - '• ' • 9.^ '-'ln ttie resutt, the appealsucc^sdsand the same is alkwwd? The appellant be set rt liberty forthwith ff itet required in any other case. —r~sa/- L.C-Bhndoo Jydge ^PifeTq^f ^l^dl ^^^ ^?3iPtFT3II^T <rf tte considered opinion that e on legal and elinehhgevidenee and Sd/-: DhirendraMishra Judge