\~i\\m\§&\o\§§§;\;\:\§w\ @ IN THE HIGH COURT OF JUDICAIuag AT JABALyuaM.g. caxMINAL ApisaAL Nozqg OF 1999. CRIMINA; ApymL UNDaa $x§cn0N 374 0r- mg CODE 01: CMMINAL w“...‘‘.. EROCEDURE . AWELLANI KLMA BANJA, sen of WW. WRA, aged 40 years,0ccubation—Cu1tiVating, Regdent of village K’airmapara , Tothnar, P.S. Bijapur, District, Dantewada, M.P. (ms. KHIJApua). VEaSUS RE$pONDENT .. JSTATE OF MADHYA PRADESH. a e , “a. “maker XI—HC—Zz 3am We W ’ a, AWGJ Nb QH€9HQ mm gi 200 mm F . § D.B. HON’BLE SHRI L.C. 3H ADOO SHMUKH JJ‘ 5 for the appellants. dvocate for the State. i has praferrcd this app€al undiar ‘ Criminal Procedum, being aggricved on and sentence datad 23-07-1999 dge, Bastar in Sessions Trial No. essions Judge after convicting rthe 'ssion (3f the o§ence under section o undergo imprisonment for life. 'on case are that on 17-12~1998, me to ViHage-‘Toyamar for marketing f PW—2 Knma Masa, the brother of . m the mght Accusediappellant bow and arrow and shot Te1am Ports the arrow pierced in the stomach injuxy in the stomach and ‘(iied at about 6.30 P.M., Kuma Masa the Police Station—Bijapur, Dishict— receiving this Ieport, S.R. Sort, S.H.O. 77/ 1998 under section—302 of the investigation, prepared the Panchanama of E i :‘ é ‘ HON’BLE SHRI DaR. D 20-06-2005 5 Shri RK. Jain, Counse Shri U.N,S‘ Deo, Govtl Oral order. The accusedjagpsNan section 3?4 (2} of m6 Codc o by the judgment of convic passed by the Sessions J 42/ 1999, whereby learned accusedf appellant for the co 302 of §.P.C., sentenced him Peief facts of prosec deceased Telam Poria had c and stayed at the residence the accused, at about 8 P.‘ Kuma‘ Banja came with a with arrow, as a result of which, of Teiam Potia. He received spontaneously, On 18—12—1998, PW-2 lodged the regort at Danmada (EXP—5). Gn PW-l mgistered the Crime No, LPVC. and took up the the deaJi bodv EXP—1. He stairmd soil mm the spot ‘L‘o took into the possegsion the blood d plain soil and the body of Tehm Polia was sent for ;3ostmort m examination Vidé Ex.P-8. Dr. D.P. Prajapati PW-4 had conducied postmortem on the dead body of Telam Poria on 19—12—1998 and prepared the report EXP-12 in which he found one injury the stomach of fhe deceased. He opined that the injuxy was ient to cause death in the ordinmy course of naturc and the do th of Tdam Pon'a was due to inmal blood loss and in hi$ opini the dcath was homicidal in nature. After complefion of the inve tigation, charge sheet was filed and during the triai the prosec tion has examined 4 witnesses ano statement of the accused w s recorded by the Trial Court under ,section 313 of the CI.P.C. ' which the accused has denied his involvement in the cn‘me amii stated that he is innocent and has been falsely implicated in the crime. We have heani learned counsei for the accused/appellant and Mr. U.N,S. Deo, on behalf of the State. \ As far as the nature hf death of deceased Telam, Poria is being concemed as homicidél in nature. Dr. D.P.Prajapati PW~4 has stated that on 19-12— 19$?8 he was working at Primaxy Health Centre, Bijapur on the post of Assistant Surgeon. On the requisition of Police: he condmcted Postmortem on the ciead body of Telam Pon'a. He noticed that there was an an‘ow penetration 1" above umbilicus Lateral to midh’ne of abdomen and clotted blood was present, On seeing, it is clear that the cause of death is homicidal in nature. The Postmortem report is EX.P- 12. Uma masa s o o , XI—HC-22 WW.Cw ..’....twwthb‘ eaw <9 zoo [are ggg mam mm WW WWW Wamh‘wm V la— ewm @ PW-Q, who is the reai broth¢r of the accused, has stated that the accused came with a bow afid arrow in the night at about 8 RM. a Insult of which Tdam Peria had receivad the injury in the stomach and died spontaneously. Therefore, m View of e above facts, it is proved that the nature of (ieath 0f the Teiam on'a was homicidal. and shot at Tclarn Pon'a, a; m I As far as the involvem nt of the accused] appellant in crime is coucemed, PW-2 Kuma asa is eyewitness in whose house the accusedlappenant had shot at Tel'am Pon’a with an arrow, who is the real brother of the accu ed and stated that on the fateful day Tehm Pan‘a came to his ho se. At about 8 RM. in the night, the accused/appellant came wi bow and arrow and shot at Teiam Poria with an arrow, as a re t of which, the armw pierced in the Stomach and died spontane usly. On seeing this, he ran away towanis the foxest and on the. next day, he. lodged the xepoxt (EX. P-S) , Learned counsel for th appellant argued that the conduct of Kuma Mesa PW-Z is not 11a a1 when the eccused/ appeliant shot at deceased Te}am Poria wi an arrow, as the accused/appellant is the brother of this wime the toxest. We do not iind any sub tance in the argument for the reason that in the iiret instance thi‘ witness i.e. Knma mass (PW-2), is real brother of the accused. herefore, it is unbehevable that this witness has deposed against his own brother in order to implicate him in such a heinous crime ‘thout his invoivement in the crime. I why this witness ran away towaids I h , hf;,,,,, 4; s , XI—HC-zz . WW, WWW cw. A Mm» Lucgfarq mm ,.) m m W mam mm WW mmw WJW wm ._ g— %a1%u'sn%¥r ia a XI—HC-ZZ Moreover, the incident took place in the house of this witness, in the third place, it depends person to person that how lie behaves i1: paxticular situation. Then: is no hani and fast rulo that in particular situation every person is supposed to behave in a particular manner. Therefore, mexely on the ground of running away of this witnese after seeing the incident cannot make his evidence doubtful. In owes-examination of this Witness, counsel for the accused—appellant was not able to elicit any fact, which make the evidence of this Witness unreiiable and untrustworthv. Themfore, we axe of the considered opinion that the trial Court has rightly relied upon this/witness and we do not hno any ground taking din‘erent view from the View taken by the trial Court. As far as the nature of the onence is concerned, the learned Counsel for the accusedfappellant argued. that from the evidence adduced by the prosecution it cannot be Iield that the accused appellant shot Telam Poria With‘an arrow with an intention to commit his murtier‘ From the available moorcl, it appears that there was some dispute between the deceased and the accusedfappellant regarding the paddy, therefore in a fit of anger, the accused] appellant shot at the deceased. In this connection, the Law on the point as has been held by the Hon’ble Apex Court in the matter of Mahesh Vs. State 0fM.P. I reported in 1996 (6] Supreme 609 was that the deceased objected to the appellant not let his cattle damage the crop. The appellant, however, did’ not pay any heed to the request of the deceased and instead that he would graze the cattle in that field w w“? “‘7 In; 2 0 r W mm mm WW U / mm§wm %af%tran%m XI—HC—22 in that process, the appe ' ths dtceagcd Krishna K and altercation ensued between the deceased and the accused and t dealt a pharsa blow on the head of , as a result of which. he died on the spot. On these facts, the Hbn’ble Ap v " urt held that m these citeumsfances the accused uring a sudden quarrel Wlthout any pm—mediaiion assaulted the eceased, therefore the offence will fail within exceph'on—4 to Sectibn—3OO of the I.P.C. Therefore, the accused was held guilty undctr section 304 Fag-1 of the 1.P._C. State of Rajsthan Vs. Sgtgmrggan repgrted in 1993 {12 Sierem 43$ held on the facts that accueed Satyanzlrayan was neighbouxers of Bhima. Some quanel took place between Bhoridevi, Wife of Bhima, and the accused, ' and there was ea accused Satyanarayan. in 1 Bhon'devi with an iron pipe, went back to his house. By t of Bhjma went near the hon: the accused as to why he wa Thereupon, the accused can inflicted a blow on the abdon‘ his intestines came out and from that ylace. On these fac the respondent had not aimed the blow on any vital part of Ram Gopal or Kesar 1a}. The blow Smarlv, in the matter of {change of words between he! and Lhat process, the accused assaulted He also injured Ram Gopal and then mat time, Kesar Lal (deceased) bmther ie of accused and started questioning s quarreling lil§e that in the morning. tie out of his house with knife and ien of Keshar lal as a result of which he died. The accused ran away and ts, the Hon‘ble Apex Court held that " was aimed at Ram Gopal but as he moved aside, it landed on the stomach of Kesar lal”. Therefore, the Wm M? wm m 2x499} m 7 W mam WW Wmm . 'WJW%‘WW aawm XI—HC~22 Jammmw Wm U man WW Wm Cami held mat the appeHanWI/should have been convicted under and not under section 302.” n the matter o Gend lafVs. State !M.P.L,J. Page No. 46, was that the accused. duzing an altarcan'om with Wif€ dealt some blows on her with two feat bamboo sticks énd on account of excessive bleeding she (iied~No reason or motive for inciependent Witness to have falscly implicated accused-Howevar there was 110 indicah'on thai accused who got cmagcd mil account of (somo remarks of the deceased duriog altcmation 311d picked up stick and Without any prior ill-will and intention to cause her death~His proved act wouid not therefore amount to the convicted under section 3&4 imprisonment for 10 years. The Court section 804 Part4 of the LRC. The vacation me efMJ’. rencrted in 2003 (1 \ offence of murder— liable to be Part-I1 and sentenced to rigorous is required to look into the facts and circumstances of each case and to ascertain as to whether the acoused/appeilant had inteniion to murder the deceased. If we examine the evidence of Kama about the incident. has stated that in the night when Telam Poria was sieeping in his houee, the accused came with a bow and arrow, when the deceased Teiam Pon‘a said ma‘t he wiii give this year paddy to the accused Kuma Banja, the accused: thereafter shot at Teiam Poria with an arrow, which struck in the stomach of the deceased and as a result of which, he died sgontaneously. From this, it appears that in the heat of passion Kuma Banja without pre-planning shot at Telam Poria with an arrow, who received injury in the stomach WW A’??£“Q Nb W lq£3[qq 200 Mass PW-2 XI—Hc—zz W651 WW WW§WW éEaIFMW Satish and dmd on the spot T cucumstances, 4.; erefore, &om the above facts and the accused] appellant shot at Telam Pona mthout an inmntion to murdsr. ’1‘ emfom, exception IV 0fsection-3OO and falls undsr thc catégory of culpable § homicide not amoummg to 1 gum 'not been able to prove th thereof he is convictzd for the I P C and sentenced to undergo 10 vears of ngorous m default of payment of due he will further unde go 4 months ngorous mpnsonmeut. entitled to set 0d under Section 1m?nsonmcnt and to yay a The accused/appellant sh be 428 ofthe Cr.P.C. for the p riod already undergone by him either in police custody or in judicibl custody. ! ”W— I L.C. BHADOO Judge B of F§ 500/ Sd/— :gDilip Ra n M, ‘1 osaheb Deshmukh‘ Judge " w ’ w urder. As such, the prosecution has 'under secu''on 30:2 of the IPC 1 against the accused appe]lan§t,. but oEence under section 304 Part-I is made out against the accu' ed ap‘geHant. 1n\ the result, the ap ea} is yartly aHowed. The accused is acquitted of me charge un er Section 302 of The LRC. Instead e ooence'under section 304 Part-1 of thls case comes under the