X1»HC22 mwm W‘Wéxm..x3m\m‘m 200 HON’BLE MR. DHIRENDRA MISHRA, JJ 25.01 .2006 Miss Shanniia Smghai, Advocalc for appellant Vas u @ Vasudeo in Criminal Appsal No. 1338/94. Mr. J.S. Baraik, Advocate Appcal No. 1283/94. Mr. U.N.S. Deo, Additional Fublic Prosecutor for the State. Oxal judgment dictated on Dais. Per L.C. 3hadoo, J Criminal Appcal No.1338/9 @ Vasudev iEr. Criminal Appeal No. 1 Banbir gxfayising out of the sam4b judgment dated 5.9. 1994 passed i Judge, Jashpumagar 'in. ST. same incident, therefore, they are for appennnt Banbir in Cn'minal ft med by accused/appcnant Vasu 283/94 filsd by accusad/ appellant bv learned Additional Sessions No.238/93 and am rclating to thq being disposed of by this common pellants Vasu @ Vasudev £31. Banbir have questioned the legality of juidgment of conviction and order of sentence dated 5.9.1994 passed Judge, Jashpumagér in S.T. No.» J Sessions Judge after holding 1i commission ofoffence under Sectii committing murder of deceased Pr‘ to undergo imprisonment for life. The pmsecution case, in blief, is that on 10.3.1993 deceased ‘ Prabal went to the house of ac cused/ appellant Vasu @ Vasudeo [Widow Q By this appeal accused/app‘ judgment. l by learned Additional Sessions 33$[93 whereby learned Addiiional he accused] appellants guilty for on 302 of the Indian Penal Code. for ebal sentenced each of the accused 3a 21mm, weilm, W m Wm WW m mm “11w ?&'€x feign % Wm DIVISION BENCH: HON’8LE MR. L.C.BHADOO 85 Xl-C—Z2 H y ~ W WWWW ‘2’ consumed Handi (home made whem Vasu. 8L. Prabal both had intoxicant substance) and when Pr: Vasudeo assaultad'Prabal with a 1; down and became Lulconscious, Banbir also caine there and both the acoused/ appellants took Prabal eo on side of road and there they with stones, as a result of which (.P— 1) of the matter was lodged by . The Investigating Offlc’er after for commission of offence under scene ofoccurrence and prepared the Panchanama (EXP-2) of the dead body of Prabal after giving notice to the Panchas. Accused Vasu @t Vasudeo while in the police custody g'ave meinorandnm (EXP-3) regarding the place. where he and in pursuance of that he got Accused Banbir While in custody also gave memorandum EXP-5 regarding the stone and the club with which Prabal was attacked and in pursuance of that the club was recovered under EXP—6 and the stone. was recovered under EXP-7. Full pant 8g. T—shirt of accused Banbir stained with blood were taken into possession under EXP-8. outside the house of Vasu @ Vasud again attacked Prabal on his héad he. died spontaneously. A mpon (E: PW—2 Mangna, father of deceased registering the case under EXP-1 Section 302 of me. 1.P.c. left for‘the keptrthe club, weapon of offence xecovered club (lathi) under EXP-4. lbal was going, appellant Vasu (1) athi. as a result of which he fell at that time accused/appellant Another stone was taken into possession at the instance of accused Banbir under Ex.P~9. The investigating Otlicer also took into possession the blood stained earth and plain earth from the house 01‘ accused Vasu @ Vasudeo under Ex.P— 10 and from the place where the deceased was attacked with the stones under Ex.P-1 1. The Investigating Officer sent the body of [warm XI-HC-22 ' WWW, WE, W _.3’ deceased for post mortem exaxx Jashpumagar, where Dr. Sanj; postmortem on the body of decea mport EXP—12; Rm‘ovemd stones doctor under EXP—13 and the d0( were found on the head of decsaé recovextd at thC instance of prcpared the site plans EXP—14 81 sent to Forensic Science Labora where mpoxt (EXP—’2 1) was receive: After completion of investiga the accysed/appellants in the ( Class, Jashpunlagar, who in tu Sessions Judge, Raigarh fmm v Judge, Jashpumagar received the inau'on to the Central Hospital, 1y Goel (PW-9) conducted the sed and—prepared the postmortem were. sent for examination by the. :tor opined that the injuries which ted could be caused bv the stones the accused/appellants. Patwari EXP—17. Recovered alticlcs were tory, Sagar for examination from i, tion, charge sheet was filed against iourt of Judicial Magistrate First rn committed the case to learned rhexe leained Additional Sessions The prosecution in order t( case on transfer for trial. accused/appellants examined 1i. learned Additional Sessions Jv .dge recorded the statements of accused/ appellants under Section 3-13 of the Cr.P.C.‘ in which they denied the prosecution evidence ) establish the offence against the witnesses. On the other hand, and have been falsely implicated L and stated that they are innocent i Learned Additional Sessions Judge after hearing the arguments of Additional Public Prosecutor andvcounsel for the accused persons convicted 81, sentenced each 01' the accused in the *manner as mentioned in Para 1 of this judgm 1 the cn'me. ,ent. [View We have heard Miss accused/ appellant Vasu @ Vas accused/appellant Banbir and Pmsecutor with Mr. MPVS. Bha1 Homicidal death of Prabél As far as the involveu Vasudeo in committing the m Smghair learned counse1 for ap height of room Where accused assaulmd deceased Prabal was : possible to attack the deceased evidence of PW—l Ramu and accused/appellant has been confidence and is not worth reli‘ As far as the involvem committing the murder of Pral: counsel for the accused/appellz have been taken place in the therefore, accused Banbir has Moreover, froiii the evidence o: that on account of police liars wimess. PW—4 Railo the case against acc On ihe other hand, learn Sharmila Singhai, Advocate for udeo, Mr. J.S. Bariak, Advocate for Mr. U.N.S. Deo, Additional Public ia, P.L. for the State/respondent. is not in dispute. Lent of accused/appellant Vasu (I) urder of Prabal is concerned, Miss pellant Vasu (a; Vasudeo argued that ,Vasu @ Vasudeo has said to have ibout 6 feet and from there it was not with Lathi. She further argued that PW~4 Railo based on which the not. mspire the ilICC. ent of accused/appellant Banbir in a1 is concerned, Mr. Baraik, learned Int argued that the incident is said to house of accused Vasu (a) Vasudeo. been falsely implicated‘in the. crime. :‘PW—B Lenda it has come on record .ssment statement was given by this He further argued that from the evidence of PW-l Ratnu 8r, ;used Banbir was notmade out. with Panel Lawyer supported th ed Additional Public Prosecutor along convicted does 3 judgment of the trial Court. [tte min XI-HC-22 Ta: wmw, W, W ' Having heaxd learned counsel for the parties in order to _appreciate the argumehts advanced by learned counsel for. the ‘dence of prosecution Witnesses. PW-l Ratnu. who is none e se than the father of aceused VaSu (é) Vasudeo, has stated that accu d Vasu @ Vasudeo is his son and accused Banbir is his nephew. O the fateful day at about 7.00‘>p.m. to hiS house, asked for Handi parties, we have scrutinized the ev in the evening Vasu 66 Prabal (home made intoxicant substanc ), both of them consumed Handi and thereafter Vasu said let-us'g and when they were leaving Vasu head as a result of which Prabal used' took Prabal towards south uit of lathi blow Prabal became unconscious, at that time both accused welehaving lathi in their hands and after some time V su came back to his house and red. When he asked him as to why he has murdered, Vasu further said ‘you remain silent otherwise you will be beaten’. There was a dispute between Prahal 8n Kaleshwar regaidin’g the land. Thereafter, he went along with people of the vicinity .to the place where body of Prabal was lying and saw that d of Prabal. in Para—5 of cross— attacked Prabal with a lathi on fell down. Thereafter, both the side near Jighar Nala’ As disclosed that Prabal has been there were injuries on the hee examination this witness has stated that the dispute regarding land was between Mangaa, father of deceased Prabal 6r, Kaleshwar, father of accused Banbir. PW-3 Lenda has stated in his evidence that he knows accused persons. On the day of Sarhu.’ festival there was. a, quarrel and accused persons assaulted Praba We. ates al with bamboo lathis as a result of ....- e c { s c s a c ‘ ”as. new._.,~ef_ ”nw 20“ - I W . .m mmw Kw wan aém A 1 ww . ..................................... mm w 200 ..............................................m ................................................ wwwxmafw’ WW13WW $armm /ér which Prabal fell down. PW—4 Railo, mother of accused Vasu has stated that accused Vasu and Prabal were at thcir residence, Vasu attacked Prabal with Kathi on his head as a result ofwhich Prabal fell down. At the“ time accused Banhir also came there and both of them lifted Plabal and taken awav After some time Vasu x‘etulned and said that Prabal has been m rdered. In view of the. above evide ce of father and mother of accused Vasu @ Vasudeo i.e. PW—l Si, -4. who have cleariy stated that 0n the fateful dav Prabal came. to th .il house, Vasu & Piabal constuned Randi (home. made intoxicant su stance) and when they were leaving their son Vasu attacked decease with a lathi as a result of which he fen down and became unconscio s. At that time, accused Banhir also came and both of them lifted P bal and took him outside. As per evidence” of Dr. Sanjay Goel (PW- ) there. were injuries on the head of deceased Prabal, his light pari tal bone 8r. temporal maxilla were &actu1ed and all these bones erced into the bmin. There were subdural 6a intradural hame hage and tissues of hram were crushed. Stones, which w recoveied at the instance. of accused/appellants, were sho to this doctor andxas per report Ex.P- 13 he gave opinion that _injuries which Were found on the head of Prabal, could have be caused by the stones in question. Moreover, as per FSL report Ex. ’21, the full pant of accused Banbir, which was taken into possessio by the Investigating Officer under EXP-8, was found stained with 0d. As per evidence of PW~1 Ramu &. PW—4 Railo in the first Prabal with lathi emd‘when he mama instanoc‘accused Vasu attac , .§ i e w e 0 k Xl— H022 became. unconscious accused BaJ him outside on the road and as which were found on the head caused by the. stones Itcovemd palsons. Accused Vasu @ VasL before his mother PW—4 Railo anc were recoveitd at the instance of with blood as per EXP—21 and e\ which was taken into possessil stained with blood and it has dispute of agricultural land betv father of deceaed Prabal. Thexefore, in View of the evidence the involvment of the ac muroex‘ of deceased Prabal is est The argumente advanced by the is devoid of men‘t and we do not fmding; of the ma} coun com commission of murder of decease 1n the result, the appeals i and thev are hetebv dismissed. ‘ Since accused Banbir is oi cancelled and he be sent to the the sentence. Sd/— ' L.C. BHADOO Judge ...‘‘..‘‘ 1bir 8c. Vasu lifted Prabal and tOOk per medical evidence the injnn'es of the deceased could have been at' the instance. of the accused Ldeo made extrajudicial confession . father PW~1 Ramu. Stones which accused Banbir were found stained ten the full pant of accused Banbir an under EXP—8 was also found come on record that there was a yeen father of accused Banbir and above ocular, and circumstantial cused/ appellants in committing the ablished bevond reasonable doubt, counsel for the accused/appellants find anv illegality or infumiur in the 'ictjng the accused/appellants for i Pmbal. ail, same. axe liabie to be dismissed / u bail, therefore, his bail bonds are concerned jail fortwith to sewe out \ Sd/— » l DHIRENDRA Mlsm ‘ Judge {WW \qshmi-— f