p" '—[ o' •^. -\. \. , & 1 .wtat'l' y K»tat1 »i »"t«' «-:- ' e- • ir- t s.' S» 1 ta, CM, "I w ..fl^ <s« 8'Mi? &%t o—.tS.!* 'ja'WEg (~i»3 H-)?)7& ^A"<{"-hi )• :^ts ..WWW 'SS' !c->t- ai as fc ! • jr j t— >»d ' " 1« * <»ia> ^. 'tS N5''.^'^ '^ <<?!s G3 CTtl* was •^feK1 i.,isikesM- [{fVS'ftS ISiy el& •0:R> •SS'tt^ tftff" • • K~- ; . .-|«,*.•Bt»"» •l-.-l-r' t'Sll*''"' !*". i^St^*-» l"^ie-l S^J^1 &•] s '•yK 'WI fe,; ffi'' XI-HC-22 sn^rgir R-fi'tisn^r sh>li»tiHf?(T aiWB J? HTOfll Sh«TTt»l 3ST "41'41d'4, tfifl+f'16, fslcliy^< 3TT^?TMacb g^.Cx.A.^...^^ 200 f^s sn^r SRTTW (rfN' Miss Nirupama Bajpai, Mr. U.K.S. Chandel, Orai judgment dicta on c|ounsel for the appellant. Lawyer for the State'respondent. Paifiel S)als. This appeal is directed order of sentence dated 18| Sessions Judge, Mungeli, in S.| Sessions Judge after hold| commission of offence under undergo imprisonment for life of payment of fine to further u Gangi Case of the prosecutior) a.m. when Khorbehra was wo| Sethram Kurmi callsd PW-2] Chandrasen Giri and PW-8 order to show them that accusl The accused a] ^raWl^ wRfr'ff tec^r rf^CTC ^sri^ITSn^T against the judgment of conviction and July 2001 passed by the Additional .fT. No.209/99 whereby learned Additiona! jng the accused/appellant guilty for Slection 302 ofthe I.P.C. sentenced him to ^nd to pay a fine of Rs.2,000/-, in default |ndergo R.l. for one year. However, co- i, father of the accused/appellant, was 1, in brief, was that on 6-5-99 at about 8 ^king at the place of incident, deceased Aadesh Giri, PW-3 Ram Sahai, PW-7 ^parayan Giri at the place of incident in s|ed Khorbehra was encroaching upon the aper digging the sand of his field was (^^f^) v t-HC-22 ^•^WRTq', «iT{ly*i6,Ricii^y OT^TTa^? HWW\ a>1l«b ••••••••••••••••••••• g^ 200 Rto«& STI^TqiT l^-ii+sn^T sti*(i<t> fff?(T BiHi^S^jsO an^TCTaTCRflf^r Accused/apt)ellant throwing outside. towards Kothar. Deceased S{ Khorbehra as to why he wa^ which Khorbehra replied that doubt, they can call Patwari meantime, accused/appellant] talking, on which Sethram Kuf irretevant, on which some a| Accused Pawan picked up attacked on the head ofthe fatal injury on the rightside of| succumbed to the injury. The | Kunda on the same day at e| initially S.H.O. registered F.1.1 of offence under Section Bandhe gave merg intimation| was converted under Section case, the Investigating OfRcer| notice Ex.-P/4 to the Panchasl body of deceased Sethram P/1. Plain soil and blood Ex.-P/2. The body of examination to the Primary where Dr. V.P. Jaiswal, (PW--1 ter Ihe dejceased, ttll'llfa'ifl.l <4]HclTfftecA<Rl<-<;K ^3?f^T3n^r Pawan was taking away that sand ifethram Kurmi and others asked accused encroaching upon the public land, on (he land belongs to him, if they have any the purpose of measurement. In the Pawan came on the spot and started ^mi asked him as to why he was talking Itercation took place between the two. pickaxe which was lying there and I, as a resutt of which he sustained head behind the right ear, fell down and Imatter was reported to the Police Station e|bout 6.30 p.m.. Receiving this report, t. (EX.-P/12 & EX.-P/15) for commission of the I.P.C., thereafter PW-5 B.D. |(Ex.-P/13 & Ex.-P/14), on which offence p02 of the I.P.C. After registration of the |left for scene of occurrence, after giving prepared inquest report (Ex.-P/5) of the ;t(rmi. Patwari prepared the site plan Ex.- soil were taken into possession under Kurmi was sent for postmortem Hlealth Centre, Pandariya under Ex.-P/S •4) conducted the postmortem on the dead 3d7 Ktlrmi. stairted Setthram (tf^^f^) i 1 m.ii-i i XI-HC-22 SIT^T^H' f?:IR;3I^T OTW<rf?(T 3^''?TPIT?PT, tfTn'H'lfi, Rtfiuy Sll^l 4;iq» H11CTI Sbll'h ^ 200 f^e^ 3n^?Ts+fliigTBf?tf body of deceased Sethram Ki( P/7 and Qpined that cause ofl brain caused by haemorrhage| The accused while in th P/16 and in pursuance ofthat| into possession under Ex.-P/1 into possession under Ex.-P/1| by the Investigating OfRcer. After completion of th against the accused along wi Judicial Magistrate, 1 Class, to the Sessions Judge, Bi Sessions Judge received the The prosecution in on accused persons examined 1 persons were recorded under accused persons stated that tt Pawan has stated that he h caught him and they have not Weapon of offence was not n that he does not know how murdered him. Learned Add arguments of Additional Publi( °bl'i|Tct'i(1-f 4l^d)'fffeIA <.(S|^K ^STf^ITSn^T rmi, prepared the postmortem report Ex.- death was coma due to compression of police custody gave memorandum Ex.- veapon of offence i.e. pickaxe was taken '. Theclothes ofthe accused were taken 3. The site plan Ex.-P/21 was prepared investigation, charge sheet was filed <h co-accused Khorbehra in the Court of [yiungeli, who in turn committed the case (aspur from where learned Additional dase on fransfer for trial. |er to establish the charge against the wrtnesses. Statements of the accused ISection 313 of the Cr.P.C. in which the ^y were digging their own land. Accused ^s not committed any crime. Sethram |eneroached upon any government land. lcovered at his instance. He has stated Sethram Kurmi died, but he has not tional Sessions Judge after hearing the I Prosecutor and counsel for the accused (<ft^^f^) XI-HC-22 sn^rqiT R-ii+sn^i shtliti Bf%d Shtllti ;;':fe:iii']-itiflilt>tffc-iS-ciy:s-9: 's^^. 'sai ^iilld'si, «iflu'l(»,(sfdiyy 3TT^?T4?|cb KIKMI aiK|tl "•""""""""" H?[ 200 R'b'A 3n^T?T([Tsrcgfer persons convicted and sente(i( in earfier part of this judgjiient Khorbehra, father ofthe accu^< We have heard learned Learned counsel for homicidal death of deceasedl Aadesh Giri, PW-3 Ram S^ Narayan Giri, who witnessed accused attacked the deceas< has stated that he conductey deceased. He noticed 2 compressed fracture. There) injury on the right eye. Injurif death was haemorrhage on a| injury near ear. ThereforeJ established that the nature of Learned counsel for thi she is not disputing the invc crime in qusstion bu{ if the prosecution has not been ab the deceased with intention t< a heat of passion on the al1 +wF<-<41.i wicff ^' te^t <^RSR ^a^irsn^T ced the accused/appellant as mentioned However, acquitted co-accused ed/appellant. counset for the parties. ^he accused/appellant has not disputed Sethram Kurmi. Apart from that, PW-2 lihai, PW-7 Chandrasen Giri and PW-8 |he crime in question, have stated that the td with pickaxe. Dr. V.P. Jaiswal, (PW-4) postmortem on the dead body of the Injuries behind right ear. There was was lacerated wound over chin. One ts were ante-mortem in nature. Caus-e of t;count of pressure on brain as a result of in view of the above evidence, it is Ueath was homicidal. accused/appellant very fairly argued that (Ivement of the accused/appellant in the Iprosecution case is taken as it is, the |e to establish that the accused attacked cause death. The incident took place in fercation between the deceased and the (^y^-) XI-HC-22 sn^T?iT R-fi+sn^r sbtfi'ti (rfgcT 'S^f •^WMt^, W^W[6, (s|C1Wy 3n^?r M^cb KINCTI ShHIW ^ 200 Ic|<)< 3I1^T?<<fTW(rf?(T accused, without any pre-mec< up pickaxe and attacked the d| On the other hand, supported the judgment of the| From the evidence of ff 7 Chandrasen Giri and RA/-81 question, it is established that with pickaxe and same picka^ accused. In order to appreciatt counsel for the accused/app^ prosecution witnesses. PW-7\ that on asking by Sethram hj spot, they asked Khorbehra, he was encroaching upon th< that he is not encroaching call Patwari and get it mea; Khorbehra that up to which po Pawan was coming from oth happening, on which Sethram Public pasture tand and on th( is happening', on which Pawar l^arned °hl'i|t<1<fl-< WRTf if fS^t <Rl+<;K ^STf^irgn^T :ation or preparation, the accused picked ceased. counsel for the State/respondent trial Court. -2 Aadesh Giri, PW-3 Ram Sahai, PW- Narayan Giri, who witnessed the crime in accused Pawan attacked the deceased <e was recovered at the instance of the the argument advanced by learned tlant we have perused the evidence of IChandrasen Giri has categorically stated ^ atong with other persons went on the ^ther of the accused/appellant, as to why public land, on which Khorbehra replied the public land, if they want, they can (ured, on which Sethram started telling |nt his land is there, at that time, accused iler side and he asked Sethram what is replied that you have encroached upon one hand, still you are asking as to what replied that as whether they are the only uppn (^y^r) :43 XI-HC-22 3I1^T^iT R-fi+sn^T shHiti tlf?(T ShHltl 3^'-qraiwr, ®TT|<H'IS,Ridiyy 3TI^?T '.rach TINcn ShHltl V^ 200 fSl'b.A sn^r S^TRR flf?(r persons who have encroachejt have not encroached upon thf that he should remain keep which altercation started, Accused Pawan pickedup picj attacked on the head of the from the place of occurrence.] para-8 of the cross-examina| animosity between the accus^ that Pawan has no intention td manner in which the incidentl evidence has been given by From perusal of the at deceased along with other occurrenceand asked father upon the Government pasture took place between the app< picked up pickaxe which wa; deceased. The facts shows tt in a heat of passion, without p! of the deceased, after attacki record which shows that the manner. Therefore, we are of ^" +i'i<fi-i41.) WRff ff teft <Ri+d;i< ^srf^iTsn^r upon the Government land and others Government land. Sethram again said (||uiet and why he is tatking irrelevant, on thet'eafter scuffle started between the two. kaxe which was lying on the ground and leceased. Thereafter, Pawan fled away Sethram succumbed to the injuries. In iion he has stated that there was no id and the deceased. It is also correct cause death of deceased Sethram. The |happened as narrated by PW-7, simitar o1(ier eyewitnesses. |iove evidence, it.is established that the villagers had gone to the place of ^f the accused/appellant not to encroach |and, on which some altercation & scuffle llant and the deceased. The accused lying on the ground and attacked the |at the accused attacked all of a sudden, [•e-meditation or preparation on the head |ng he ran away. There is nothing on accused acted in a cruel or unusual 1 the considered opinion that the case of (tft^y^) ^ XI-HC-22 T5T "41'i|ld'4, s?Tny'16, {sfdl^y 3TT^'?T45)cb *<i*<ni a>*<l«h••••••••••••••••••••• ^j- 200 f^% 3TI^T?ir f^RiST^T StlKi'OTlf^tI' ^HIch Ban/e ^^JA '<)f '--^ y^' sn^rsTgTgTflf^T the accused is covered under The offence against the accu^ed Part-1'lofthel.P.C. pxception IV to Section 300 of the t.P.C.. does not travel beyond Section 304 Section 304 Part-1] of the I.P. accused is in detention since shall be entitled for set off for this period. -a-^e^_ Sd/- L.C.BHADOO Judge ^rafcpfl^ iffR^rf ^'te^t rf^RZK ^; arf^iT sn^r In the result, the app^al partly succeeds, while setting aside conviction and sentence imptised upon the accused/appellant under Section 302 of the I.P.C. Tt^e accused/appellant is convicted under ;. and sentenced to undergo R.l. for 10 years. In para-43 of the juc|gment, it has been mentioned that the p-5-99 till today. The accused/appellant Sdl- V.K-Shrivastava Judge ('ftt^fe*)