. CF00000631 27 fHE EEC COURT OF DDELA “TEQE 5x? JAB zLPURiM Ri Division Bench ( rimina!) E ' “22 g {,m “pm! N {'F’WRV Eimmaiep Briafiva m 3m Sh; Pmcl‘am (t?) iuuehému, bv cab: lamb > Gt‘wi abmli 2? yma; Rm Mamih {Judzigaxa P ‘. Qixmairaun m Dishui Dalwwexh (M’PJ ‘ $§§ei§gi§is i; iE'J-ail) $32 9.; I Im “imxhgii ‘ ‘ 1} 1 1 wNfHCTxGN gENE‘EN“ UKS. 3'62 EC y/ RI fur Life 1m eshm m aha R‘Q 59% fam m dsfaul‘ of R1. f5; § mme‘nm Jxxz r L\ {3 M P V‘z Rcmlmiee named bv the Emmet) 5mm have Basia? Jami E {Eisirict Iagadaimr H? Maire: mamur oim‘mmg aim mammg g3 mgiumned aame me aweliantg nmier $1; agLeal an the mluwxgg fuig ail é’guuimg f‘ }‘y w yaw OE y 1 2b mm ‘kge‘w 21x CL k $4 k V 1~ é XI—HC—78 3am,m,mg{ 11mmm.Cv.6...ND..§&.Q m 2000 mm (W) 1 WWW Dmsuon Bench: - Hdn’ble Mr. L.C. Bhadoo and Hdn’hle Mr. Dhirendra Mishra JJ. 13-‘9£006 WWEIe‘‘z‘tW $Wam¥$r gw. , my?» , pm ’gV Shri Ka!yan Kalamkar. Advocate appears on behalf of Shri Abhijeet \ Sajrkar, Advocate for the appellan‘lt. i Shri U.K.S. Chandel, Panel Lawyer for the State/respondent. ;-;*« Oral Judgment dictated or Dais. PER L.c. BHADoo J. Ehis appeal is directed against the judgment of conviction and order of sentence dated 2§:1-2000 passed by the 3m Additional Sessions Judge, Bastar at Jagdalpur, in S.T. No.’ 16/99 whereby learned Additional Sessions Judge after holding the accused/appellant guilty for commission of offence under $ection 302 of the l.P.C. for committing murder of Pujari Chandraiyya, sentenced him to undergo im )risonment for life and to pay a tine of Rs.5,0,00/-, in default of payment of dne to further undergo R.l. for one year. The case of the prosecut i , in brief, is that at about 6.30 a.m. when deceased Pujari Chandraiyya a d «his family members were sitting in\the house and warming their bodies before the fire, the accusedlappellant, all of a sudden, came on the scene ca rying a club in his hand and all of a‘sudden, attacked the deceased with the c ub on his head and ran away. The matter was reported by PW-2 Pujari Krishnarao to the Police Station Bhopalpatnam. Recei ing this report, First lnformation Report (Ex.—P/2) was registered by the tation House Officer under Section 307 of the l.P.C.. He left for the scene of occurrence and sent Pujari Chandraiyya to the Primary Health Centre, x opalpatnam, where doctor examined the n h XI-HC—78 WW. FFI'\ 200 mW<W> WWW§WW %a€a¥rm } mwm #0?” injuries and he prepared the i ry report (Ex.-P/7). Thereafter, he was referred to the Maharani Hospi ai Jagdaipur where he was admitted for treatment however on 14-1-99 he succumbed to the injuries Accordingly, erg intimation (Ex -P/9) was after giVing notice to the Panchas the Investigating Officer prepare Panchanama Ex-P/14 of the dead body of the deceased. The postmortem of the dead body of the deceased was cdnducted by PW-1 Dr. M. A. H Kizvi and he prepared postmortem report Ei-PH in which he opined that c use of death was shock and haemorrhage Ciub, weapon of offence, was taken into ‘\r ie‘ as‘ a resuit‘of injuries on the he . a possession under Ex.-P/3 from the piace of occurrence. Blood stained woolerk cap of deceased Pujar' Chandraiyya was taken into possession under Ex.-P/4. The site pian -P/5 was prepared. Ciub and woolen cap were sent for chemical examin tion to the Forensic Science Laboratory, Raipur, from where report Ex.—P/ 3 was received. After completion of the i vestigation. charge sheet was tiled in the Court of Chief Judicial Magistr , Dantewada, who in turn, committed the case to the Sessions Judge Ja dalpur from where learned 3rd Additional Sessions Judge received the cas on transfer for trial The prosecution in ordert establish the charge against the accused examined t0 Witnesses. State ent of the accused was recorded under Section 313 of the Cr.P.C. in wh he denied the material appearing against him in the prosecution evidence nd stated that he is innocent and has been falsely implicated in the crime. wever, learned Additional Sessions Judge after hearing the arguments of itional Public Prosecutor and counsel for the accused convicted and sente ced the accused as mentioned in para-1 of this judgment ,i‘F ) P.T.O. n u d E . a i h o d XI-HC—78 WW ..... . .......... Ha: 2007 WWI(W) x mmwm ~2~ 1 rec‘prd. We ‘ have heard learned i The homicidal death af tf from that, from the medical evidt he ‘conducted postmortem on the there was stitched wound on I wotmd wa3 found fractured, the r evidense of eyewitnesses name! Devi, PW-6‘Ramesh Kumar and the death of the deceased was h 4 As far as invoivement of t‘ concerned, PW-2 Pujari Krishr Anjaiyya, son of the decease deceased, PW-6 Ramesh Kun Parmel Rajesh, son-in-iaw of the stated that the accused, aii of a s of a sudden, attacked the dece received injury onLW {ianetai injury. He was taken to the F where he was referred to the wmm WW§1€Q§W éawm counsel tor the parties and perused the ‘ ie deceased has not been disputed. Apart znce of PW-i Dr. Rizvi, who has stated that t dead body of the deceased, he found that eft ‘parietai region, bone beneath the said teceased died due to that injury, as also the y, PW-4 Pujari Anjaiyya, PW-5 Pujari Laxmi PW-7 Parmel Rajesh, it is established that :micidal in nature. 1e accused/appellant in crime in question is Iarao,vson of the deceased, PW-4 Pujari :l, PW-5 Pujari Laxmi Devi, wife of the rar, nephew of the deceased and PW-7 t deceased, who witnessed the crime, have rudden, came with a club in his hand and all ased on his head, as a result of which he region and blood started oozing out'of the ‘rimary Health Centre, Bhopalpatnam from Maharani Hospital, Jagdalpur where he succumbed to the injuries. ln the cross-examination of these eyewitnesses, the defence has not been able evidence of these witnesses ur extent, we do not find any illeg Court. to elicit any circumstance which makes the reliable or untrustworthy, therefore, to this ality or infirmity in the judgment of the trial P.T.O. i XI-HC—78 mW,W1—¢,W Wm... ............O......1H 200 WW(W) mam ‘am’iwm WW§WW mmwm ~ 51~ %;3TF%W311%31 Learned counsel tor the accused/a’p'b'é‘H—ant— arguea fria'F'lT' the’ pro‘secution case is taken as it is, even then offence under Section 302 of the LPb. was not made out against the accused/appellant for the reason that there was no animosity between e deceased and the accused. Moreover, the} accused was son-in-iaw of t e‘deceased and even material witnesses ha\/;e stated that they do not kn w as to why the accused assauited the dece‘as‘ed and he assauited only nce, therefore, intention to cause death is missing in this ca'se, as such, offe ce against the accused/appellant does not travet beyond Section 304 Part-II fthe LP.C.. On the other hand, Ie rned counsel for the State/respondent supported the judgment of the tria Court. Having heard iearned cou sel for the parties, we have perused the evidence. Perusa! of the evid nce shows that there was ‘no animosity amongst the deceased and the ac used. The deceased aiong with his famiiy members was warming himsetf efore the fire, at that time, the accused came, aii of a sudden, carrying club in his hand, without any rhyme or reason, he assaulted the decease on his head only once and ran away. No evidence has been adduced by he prosecution that the accused had any intention or came with pre-medit’ tion or preparation to cause death of the deceased. The accused ran a ay after throwing club on the spot after attacking the deceased only once and the deceased died after 2 days of the incident. ln the circumstances it cannot be inferred that the accused assaulted the deceased with the intentionto cause his death or cause such injury which was likely to cause d ath in ali probabilities. From the manner in which the accused assaulted th deceased with club on his head, it can safely be inferred that the accus d had knowledge that by assaulting the deceased on his.head with a cl , he may likely to cause death, therefore, 9 l P.T.O. l , u XI-HC—78 HW,WW,W m$rm mmwm ‘ -€‘_ offence against the accusedlap was made out. For the foregoing [eason accused/appellant cannot be su in the result, the appeal partly succeeds. The conviction and sentence imposed upon the accu’sedlappellant under Section 302 of the LP.C. are set aside, instead thereof, he is convicted under Section 304 Part- ii ;o'i’the LRC. and sentenced to undergo R.i. for 7 years. As per the record, the accused is in detention sinc the sentence impesed upon him. therefore, the accused/appeiiant be set at 1 any other case. Sdl- L.C.BHADOO Judge WW§WW §§‘31%H311%5T Wm... x .{.“Wzoo m (W) lioerty forthwith, if not required ii 5i ties DWRA unsrmAix Judge Sdl- fry P.T.O. penant under Section 3U4 Part-H ot the l.P.C. s, conviction and sentence imposed upon the stained. e 13-1-99 thereby ‘he has already undergone m