CF00000630S5 IN THE HIGH COURT OF fflE JUDICATURE AT JA.BALPUR (l.l.P.), H) Criminal -peal No.-?'2-*2- /2000 Oivision Bench ( iinii.i.i) APPELLAITF :- T .(- ..^^s' rs^f 'ii.v^.''' 'y-^^ ^wv .^^"^ 'y^/ ^' Jl^ / ^< ^< Labduram @ Sukhram, S/o Budiya Ram Ifenjhi, Aged about 5^ year; R/o Gram- Buls, Dufakhar, Thana-Lakhanpur, Distt.— Sarguja (M.P.) V ER S US REEPONDE-W :- The State of K.P. Through P.S. Lakharpur. Distt.- Sarguja (M.P«) S.T.No.,1 275/93 U/S. 502 of I.P.C. P»S<, Lakhairour, Distt.- Sarguja (M.P.) CRIMNAL APP3AL UI'EBt^ SECCTON374 OF Cr.,P_,,C, .-—..—..A _„:„_.. 1 XI-HC-22 sn^rqir R'ii*sn^T sbi flfgcr Sb11<0 4-- \\- 3^?'^MM^, w5\wie, Rfciiuy 3T1^?T^;|ch . — ..C?:.'Q:.- :.7%-J.?^- KK4rtl sh*4Jt»»••'••'•••••••••'••'•••y g^ ^fl Rl<>4 sn^T B^TRIT Hf?cf DiViSson Bench: - Hon'bie Mr. V.K. Shrivastava, JJ 0^006 Smt. Kiran Jain, counsel for Shri G.D. Waswani, Govt. Oral Judgment dictated on |the appeliant. Afdvocate for the State/respondent. £S>au L.C. This appeal is directed agai(is sentence dated 31 January 20001 S.T. No.275/98 whereby iearned $1 appellant guitty for commission o^ sentenced him to undergo imprisoitiment in default of payment of fine to furtljier Case ofthe prosecution, in Labdu Ram attacked deceased resuit of which he sustained injuri accused went to the house of informed him about the incident. nameiy Sajaani Bai (PW-2) reach< Banshu to the house, where, he SL The matter was reported by PW-' Merg intimation (Ex.-P/2) was information Report Ex.-P/1 was The !.0. ieft for scene of Panchas, prepared inquest report redUced r4 occurilence q>l<<fCT<fl-< Wl?ff if fS^S <R|*<;1< ^;3Tf^1T3TI^r ist the judgment of conviction and order of passed bythe Sessions Judge, Surguja in tessions Judge after holding the accused/ offence under Secfion 302 of the I.P.C. for life and to pay a fine of Rs.500/-, undergo S.l. for 6 months. PW t)rief, is that in the night of 9-4-98 accused with a vvooden club of Sarai, as a jes on the head and back, thereafter, the ?-1 Jhagru, brother-in-law of Banshu and In the meantime, vcife of the deceased |d to the scene of occurrence. They took SL|ccumbed to the injuries in the same night. Jhagru in the Police Station Lakhanpur. into writing and based on that First r^gistered under Seciion 302 of the I.P.C. ;, after giving notice Ex.-P/6 to the [Ex.-P/7) of the body of Banshu. He also (<^^r) \ 1 ^ XI-HC-22 3'S^ "Ml^lclil, »T{IWIS,fc|dlti^<. 3TI^?T4ach ll*<wi (hHlth ••••••••••••••••••••• ^- 200 fc|<)«A sii^T^ir R-fi«h3IT^r SbMicb^fgtT 3n^r??aTW(rf?(T prep^red preparea me site plan bx.-ws. vvnji memorandum Ex.-P/S, in pursuar|i offence i.e. wooden club and same] The body of deceased Banshu Govemment Hospital, Udaipur, ^ conducted the postmortem, opined that cause of death was co| was homicidal in nature. After completion of the inv^; Court ofJudicial Magisfrate, 1 Cla^; case to the Sessions Judge, Ambi) witnesses in order to establish the 1; the accused was recorded underl denied his involvement inthecrim^. We have heard learned At the outset, learned dispute homicidal death of decea) accused in the crime in question. was abusing in front of the house sudden, ihe accused attacked the once on the back, without intentioh and informed brother-in-iaw ofthel the accused does not travel beyonc) le in the police custoay, e accused gave ce of that he got recovered weapon of was taken into possession under Ex.-P/4. ^ sent for postmortem examination to the |vhere Dr. T.N. Mahingieshwar (PW-75 postmortem report (Ex,-P/13) and ^na ctue to brain haemorrhage. The death +i'iiF<-t'lfl-) 4iti<-irffte^t'<l«i+4i< ^iSff^q'ST^T inv^stigation, charge sheet was fiied in the >s, Ambikapur, who in turn, committed the |<apur, where the prosecution examined 8 ;harge against the accused. Statement of ISection 313 of the Cr.P.C. in which he courtse coitnsel for the parties. for the accused/appetlant did not i^ed Banshu, as aiso involvement of the h|owever, she argued that as the deceased |3f the accused, in a sudden fight, all of a iieceased with club once on the head and to cause his death, thereafter he went |deceased, therefore, the offence against Section 304 Part-11 ofthe i.P.C. On the other hand, teartied counsel for the State/respondent supported the judgment ofthe trial pourt. (tft^^r) \ ~^5 XI-HC-22 sn^r^r f^fNian^TT ?ii nf?cT 3^'-<ii<<ic|<4,yiTi1yi|(», (sldiyy 3TT^?T^iach wwaiw """""•""••••••g^ 200 f^s witnessed the accused assaulting evidence of Dr. T.N. Mahingieshw injury on the head, cause of death the head was fatal & death was h< death of the deceased was homici RA/-3 Budhram and RAf-4| have categorically stated that th| wooden ciub, as a result of which fell down. Therefore, from the afcj in attacking the deceased is estab| |the deceased with club, as also from the i|ar (PW-7), who has stated that there was |was brain haemorrhage & coma, injury on ibmicidal in naturs, it is established that the tial in nature. IShobhnath, who were with the deceased, accused assaulted the deceased with |ie sustained injury on the head & back and (ove evidence, invoivement of the accused ished. argurtient consumin Now, coming to the appellant, if we examine the evid; in the Tateful night he was deceased Banshu along with on^ liquor, as there was only one bott| of them sat at his residence and ct with deceased Banshu to leav^ accused met him on which very powerful, he was trying to t^ move. Thereafter, Labdu attack^d ran away. Therefore, the above .his residence, in the first instanc4, is very powerful on which disputi^ the house and assaulted the only once, as a result of whict dece^ised ^rafepfN'TORTt'ff fe^)-rf^TRTC ^sri^R'aiT^T dhror" ond PW -1 Shobh lath. who of tearned counsel for the accused/ 'nce of PW-3 Budhram, he has stated that ming iiquor at his residence, at that time, Garra came to his house and demanded e of iiquor at his residence, therefore, both >nsumed liquor. When he was going along him at his residence, on the way, the ianshu asked the accused that he is ike Banshu from that place but he did not the deceased vvith a Lathi on head and widence suggests that the accused was at the deceased asked the accused that he started, the accused brought a club from on the vital part of the body i.e. head the deceased died in the night at his dec^ased (•^^M) Bl XI-HC-22 ST? -^nqT^pT, STfNpre', l«ic)i«^< 3H^T q?<^ (nwiTStiinqi ^ 200 (^(l^. a.n^TW f^rasn^T aiiiwgfscr t es- Barve ..Nv O)- w^TwareKHf^T recol-d residence. It has not come on the two. When the deceased startey a club and assaulted the deceaset Banshu died in the night. Therefd inferred that the accused assaulted death. However, knowledge to the facts that the manner in which the head with ciub, the accused had on the vita! part of the body i.e. h) Therefore, knowledge can be attribut that there was any animosity between talking irreievant, the accused brought P on the head which proved fatal and |re, from the above facts, it cannot be the deceased with intention to cause his [accused can safely be inferred from the laccused attacked the deceased on the kn|owiedge that by attacking the deceased ^ad, he may likely to cause the death. ted tothe accused. In the result, conviction ofthel cannot be sustained. Accordingly, 1 aside conviction and sentence undert appellant is convicted under Sectior to undergo R.l. for 7 years.As p| accused is in detention since 16-7 detention for a period of 8 years, a; the sentence, therefore, he be set i other case. Sd/- L.C.BHADOO Judge 'hitiTcitfl-i *iiti<iTirte^t<Ri.L<;i< ^sri^Tsn^r accused underSection 302 ofthe I.P.C. ;he appeal partly succeeds while setting Section 302 ofthe I.P.C.. The aceused/ 304 Part-11 ofthe I.P.C. and sentenced ir the judgment of the trial Court, the -98 thereby he has already completed p such, the accused has already serv'ed ^t liberty forthwith, if not required in any *WttiTTUUl^^ Sd/- V.K.Shrivastava Judge (ifti;^) ffi i':i n IB a?'f •\