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'.D 'J‘ _ 3: C ~' v r D XI—HC-78 WW ‘ §?{.&1.%.$..f€@ .’?& m_ Wmmaiawt) maa‘m WWW mmmm Division Bench: — ‘ Hon’ble Mr. L.C. Bhjidoo and Hon’ble Mr. Dhirendra Mishra, i mwamm én‘Wm Today, this appeal has E No.2477/2006, application for sus the re‘quest of counsel for the p finally, as the aylpeal depends L n‘amely, PW-3 Somari Bai and the Oral judgment dictated onZ Per L.-C. Bhadoo, J: — This appeal is directed agai of sentence dated 25-11-1999 pa Jashpumagar, in Sessions Trial i Sessions Judge after holding the a: oli‘ence under Section 302 of 27-11-2006 1, Mr. 1D. Bajpayee, counsel i y Mr. 11K. Gwaire, Deputy G i u ‘ JJ. For the appellant. ovt. Advocate for the State/respondent. teen posted for hearing on M.(Cri.)P. pension of sentence and gant of bail. At arties, the appeal is being disposed of pon the evidence of only one witness accused is in custody since 1999. >ais. / nst the judgment of conviction and order ssed by the Additional Sessions Judge, \lo.ll7/99, whereby learned Additional cused/appellant guilty for commission of e I.P.C. sentenced him to undergo imprisonment for life and pay a f e of Rs.2,000/-, in default ofpayment of fine to further undergo SI. for two ears. The case of the prosecutio in brief, is that on 25‘5-1999 at about 9 pm. the accused went to the hou e of his brother namely, Sukhuram and asked as to where he had gone, b cause in his absence wild animals have P.T.O. XI-HC—78 EW,WE,W WW 2m mm (W) m$im i WW§WW i mwm éawm eaten two goats and thereaiier, in the courtyard of the house, both the mothers stzuted quarrelling. In that process Raturam assaulted Sukhuram with Lathi on his head and stoma cht At that time, Somari Bai, Wife of the deceased, was also present there. 0n account of the injuries sustairied by t i Shkhuram he fell down. Hearin ‘the commotion, PW-l Ramlal & PW-2 t Mukundlal came on the scene occurrence and saw that Sukhuram is lyingfin unconscious position. The accused was standing holding Lathi in ‘ i - his hand. On enquily, Raturam infomed that Sukhuram is in the habit of quaneglling with him. Thereafter, Sukhuram succumbed to the injuries sustained by him. “The report EXP-1 was lodged in Police Station: Bagicha. Merg intimation EXP-2 was alsc given based on which Crime No.4§/99 ~ was registered. Aiter usual-investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Jashpumagar, who in turn, committed the case to the Sessions Judge, Raigarh, hom where ieamed Additional Sessions Judge, Jashpurnagar, received the case on transfer for trial. In order to establish charge against the accused, the prosecution has xamined eight witnesses. Statement of the accused was recorded under Section 313 of the Cr.P.C. in which he denied the incriminating material appearing against him in the prosecution evidence and‘stated that he is innocent and he has been falsely implicated in the crime. Learned Additional Sessions Judge atter hearing respective counsel for the parties, convicted and sentenced the accused as aforementioned. \\ l , P.T.O. XI-HC-78 m ww mm&33%3; WW(W> WWEW$§R WWW a331f%m3n%:1 We have heard Mr. J.D. Bajpayee, learned counsel for the appellant and Mr, D,K, Gwalre, leamed Deputy Govt, Advocate on behal£ of the $tate/respondent. ‘ Mr. Bajpayee has not disputed the homicidal death of Sukhuram. Agar; from that, PW-3 Somari Bai, who was present on the scene of dceurrence, has stated in her evidence that the accused assaulted her husband with Lathi as a resuit of which hefell down and succumbed to the f injuries sustainedpy him. Dr. Christ Dular Bakhla (PW-7) conducted post- mortem on the body of the deceased. He has stated in his evidence that there were two injuries ondthe bocy of Sukhuram, one Was iacerated wound t i ‘ oh the lett parietal region and ere was contusion on the chest. V On g obening the head, clotted blood x as found present. All the injuries were anti-mortem in nature and the cause of death was haemorrhage and neurogenic shock. His repoxt is x.P-?. Therefore, in View‘of the above ocular and medical evidence, it i' established that the death of Sukhuram was homicidal in nature. As far as involvement o the accused/appellant in the crime in question is concerned, PW—3 So ari Bai wife of the deceased, who was present at the scene of occurrenc at the time of the incident, has stated in her evidence that on the, fatelill da at about 3 pm. both the brothers i.e. the accused and the deceased were ‘ drunken condition, as their goats were eaten away by some wild animal, e accused asked her husband as to why he had not come to the house,vh he came earlier, the goats could have been saved, on which both the br ers started quarrelling and the accused 5) ; i t l l P.T.O. i XI—HC—78 (?I 3am m W WW(W> a?“mm am i m m assaulted i await the kieceased Wm wiih Luihi n his—head—eiWf , % W A whlch her husband became unconscmm and fell down The above ewdenee of tins w1tness (PW 3) 1s corroborated by the medlcal evxdence of PWJ Dr. Christ Dular Bakhla, Whwh has been ment1oned earher. ’Eherefore, involvement of the accused in the crime in question is \ ‘ established. ‘* f Lemed counsel for the appellant argued that nom the evidence of PW-3 Somari Bai it is evident that the quarrel started at the spur of the moment. The agcused and the deceased were brothers and there was no intention of the accused to cause the death of his brother. Therefore, the offence does not travel beyond Section 304 Part-II ofthe LRC, On the other hand, Mr. “wake, learned Deputy Govt. Advocate supported the judgnent ofthe tria Court. . In order to appreciate the rguments advanced by learned counsel for the parties, we have perused e evidence available on record PW-3 Somari Bai has stated in her evi ence that on the fateihl day, the accused and the deceased were in drunk n condition, on a' petty matter the duan‘el in that process the accused assaulted the deceased on his head with L From the above facts, it cannot be inferred that, the accused attac the deceased with intention to cause the death. There was no animosi between the two brothers. The quarrel started all of a sudden. The ve facts show that the accused had no intention to cause the death of the deceased. VHowever, it can safely be “‘1 inerred that the manner in whi h the accused assaulted the deceased with 5 . 77 f P.T.O. started between the brothers an a k t o XI—Hc-7s § @ 3am Wm W . V WW C53...& .3$.?@./z§ £99 mW W ammm I Wm(W) ‘ WWWW &W that > W 81%?! 3m $ 341%“ W 1 ‘ ‘ Lathi on is head, the accused had the knowledge that by assaulting with 1 \ [\g 1 l Lathi on head he may likely to cause death In the circumstances conviction of the § l accused and the sentence imposed upon him under Sedtion 302 ofthe I.P.C. cannot be sustained l , l In the result, the appeal ofthe appellant pa1tly succeeds and the same 5 is partly allowed. Conviction aid sentence imposed upon the appellant .unde‘r‘ §ection 302 of the I.P.C, are set aside and he is acquitted ofthe said l t ic’hairge, instead thereof; he is co victed under Section 304 Patt-II of the I.P.C. and sentenced to undergo .I. for seven years. It is stated that the accused is in detention since 28- -1999 thereby he has already served the sentence imposed upon him T ercfore the accused/appellant be set at‘ liberty forthWIth, ifnot required ' any case g In View ofthis order VI (C 1 )P \Io 2477/2006 stands disposed of Sdl- ‘ L.C.BHADOO ‘ p Judge .L N w% s .\/pg PTO