XI—HC—22 WW W mama ‘ &‘~s A ' Peo'.£{ as- é 200 WM1§1E<7€31WR $Wm , ’ f First Class, Jagdalpur, the acc‘ l questioned tha 1€gé1ity of jud.‘ J sentence dated 10—8‘1996 pa; Judge, Bastar at Jagdalpur in : the leamed, Ist Additional Se accused/appellant guilty for cl Section 302 of the Indian Penal Code, sentenced himgto undergo ‘ imprisonment for life. used] appellajlt Madvi Bhima has merit of conviction and oriier of Esed bv Ist Additional Sessions Sessions Trial No.95/93, whereb ssions Judge, after holding the mimission of the offence under ”mew ~ L .H, new * D.B. : HON’BLE SHRI LAL CH DBHADOO J. AND ' HON’BLE SHRI VIJAY KU AR SHRIVASTAVA J y . 23— 12-2005 ¥ Mr. R.K.Jain, counsel for the accused] appellant, Mr. Akhil Mishra, Panel Lawver for the respondent] State. Head. s ORAL J UDGMENT 1 ' By this appeal, thro‘lugh Superintendent, Distn‘ct Jail, - XI~HG22 mwawmm®€rfw $Wm 2. . The case of the prosecution, m bn'sf, is that, on 13-6— 1992 at about 4 P.M., the accuskd Madvi Bhima and Uika Bhima camc to the house ofHemla Som‘lu’, P.W.-2.‘ They starttd saying to Hemla‘sOmlu mat he is outsidg‘r. H€ hasrsemed in their village and he, is cultivatirlg fhe land oil the Villagers, therefore, he should leave, the village. ‘Upon which, Hemla Somlu replied that, he is residing in the Village since last so many years, therefore, he will l not leave the village. Upon‘wliich, the accused personsstarted assaulting Hemla Somlu with cl b. Thereafter, they left the house. i At about 8 O’clock in the night when the deceased Hemla Mase, after taking dirmer,.WCnt to wa h her hands, the accused Madvi Bhima shot her with an arrow o her stomach. The arrow pierced near the navel in her stomach, a result of which, blood started s oozing out of ifand intestine- out of it. Her husband Hemla Somlu pullediout the arrow. the morning of the next day, Herhla Mase was taken to Polio Station, Jagargunda, where .she lodged a report, EXP-6. There ter, she was sent to the Hospital, V Where Hemla Mase succumbed to the-injuries. ’On 14-6—1992, 1 Y ‘ [thew c e n Merg Intimation, EXP-7 was regi Sub—Iflspmtor of Police went nea; where he saw the dead bodv of } £X.P~8 to the Paxlchas, he prepay red a Pan'chnama, EXP—9 of the ’ dead body. Thereafter, he sent t he dead bodv to Primarv Health Centre, Jagargunda for-post mortem under EXP—11. ‘He also took into possession the blood stained of occurrence under Ex.P- 12. After completion of the investigatio a charge—sheet was hled in the C ourt of Judicial Magistrate First , ' Class, 'Jagdalpur‘, who, in turn, cc Judge, Jagdalpur, Wherefrom l earned Ist Additional Sessions Judge, Jagdalpur received the cas e on transfer for trial order to establish the charge, The proSecution, in 8 witnesses. Statement of the against the accused, examined accused was recorded under Sec ion 313 of the Code of Criminal denied the prosecution evidence Procedure, in which the accused and stated that he‘has been i1 nplicated'in a false case. The stered. Jaidev Singh Yadav, the “ the Rest House of Jagargunda, Iemla Mase. After giving notice, soil and plain soil from the plac n7 mmitted the case to the Sessions WE}W XI—HC-22 accused Uika Bhima son of Mahgdu Muriya died during the trial, therefore,”ths trial procwded a only. V' 4. After hearing the arguments of learned counsel for '.both the parties, the learned . convicted and sgntsnced’ths ac} in pam 1 of this judgment, » 5. We have heard Mr, f of the accused/appellant and Mr. Akhjl Mishra, Panel Lawyer on behalf of the rwpondent/ State. Mr. Jain, learned c ‘6. ’ . argued ‘That, as per the report Hemla Mase, the arrow was sho aunsel for the accused/appellant, EXP—6, lodged by the deceased t by Uika Bhima, who hav’glready died during the trial: The evid nce of P.W.«2, Hemla Somlu, the ’ > husband of the deceased ahd J v v l i v i 1 \ t t t gainst the accused Madvi Bhima . Ist Additional Sessions Judge oused Madvi Bhima as mentioned {.Kdain, learned counsel on behalf ‘W.—3, Hemla Joga wis not correct XI~HC—22 and they have adduced the evidence contrary to _the dying declaration made by the deceasbd, in which she etated that the accused Uika Bhima was the p rson who shot the arrow on‘her stomach, WhareaS these Wimess s have stated that the arrow was shot bv the accused Madvi Bhima and ‘from their cross— examination it is clear that bot these witnesses were inside the house ahd it was not possible 'fo them to witness the crime and in these cimumstances the F.I.R. ,1 dged by the deceased herself has vto be given weightage in com arisen to the evidence of these witnesses. 8. In order to apprec ate the argument advanCed by a learned couneeLfor, the accuee /appellant, we have perused the evidence of P‘.W.a2, Hemla Soml and P.W.-3, Hemla Joga as well 7. ’ On the other hand, . Mishra, leamed’ Panel Lawyer r for the respondent/State, sup' orteid the judgment of the trial Court. XI~HC>22 as the F.I.R., EXP—6 lodged by th a deceased herseE. Perusal of the F.I.R., EX.P:6 shoWs 'fhat, Uika 11h shat the anew from front of the, . hous6 of ‘the' deceased which pie side of the navel and blood Sta husband Hemla Somlu ahd 11101 accused persons ran away, wh stated that the accused shot 1 stomach of his wife Hemla Mass. stated that, he was takihg his mt faking dinner came out for Wash persons came in front of his hous ‘could xiot See the accused as he ‘ \He has further stated that, it is v stanedcrying, he, after hearing t at that time, 3—4 persons, who h ‘ incident happened in the night a Wife was washing hands in the o her bodV andshe became uncons ‘cious. P.W.-3, Hemla Joga, in his reed in her stomach on the right rted‘ oozing out of it. When her her—in-law Jimme came out, the :reas PAM-2, Hemla Somlu has he arrow which pierced in the In the cross~examination, he has :al in his'house and his wife after ingher hands. At that time, 2—3' e and it is incorrect to say that he vas taking meal inside the house. correct to say that when his Wife he cries of her wife, came out and ad come with Axe ran awaV. The 1d the night was dark. When his ourtyard’ (the arrow was’tshehi i t meet x XLHc-zz XI-HC—22 WW WW< %a1f-anan%w was taking msal in his house am went to wash her hands in the m on her and 2-3 accused person crvmg then he came out ‘In v Witness also, when the dark night was there and he was taking ' dmner ms1de me house 1t canm ;t be sald that he, in fact saw the amow. In the hght of ev1dence of person who shot hls Wlfe w1th the these two witnesses, weightage h lodged by none other than the been mentioned that, Ila Eula sh stomach. Therefore", in fact, the; can be held that the accused M1 crime ih question and he shot‘ stomach of the deceased, and t],he other accused 'Uika Bhima has already died during the tn'al. l 9. .Therefore, we are oi‘ finding of the trial Court, 1when his wife after taking dinner i )urtyard, there the arrow was shot _ s came and when his wife started iew of the above evidence of this as to be given to the F.I.R.,- EXP-6 ideceased herself, in which it has lot the arrow which pierced in her re is no legal evidenceby which it advi Bhima was the author of the the alrow which piemed in the the considered opinion that, the convicting and, sentencing the [slaw i\, XI—HC-22 of ths 0&3nce under Section " n not based on the legal evidence d . 302 of the Indian‘Psnal Code, i -* and,- therefore, cannot b€ sus 10. Conviction and sentence passed set aside and accordingly the acc lp the result, the ap eal succeeds and is allowed. The ainst the accused] appellant amt used/ appellant is acquitted of the charge of‘Secu'on 302 of‘the Indian Penal Code. He be set at liberty forthwith, if not required in any omiffyf L Sd/- 9 L.C.BHADOO Judge ' Gsingh h,» V. ‘ h Sd/- V.K. Shrivatava Judge /,7/. {we} we}, , g