u g 1; a~D ' mm (13W) ww mmm Wm$$fm CRIWW APPELLANTS 1 Kariam Joga, s/o Kartam Kona, aged 40 ycars " 2- Karuam Kosa, s/o Kartam Muswa, agqi about 26 years, both belong to Multia Caste, R/o Village Misma, P.LJ‘ Dornapal, Distt. Dantewada Ver sus RESPONDENT - Sta;e of Chhattisgarh through P.S. Doybnapal, Distt. Dantewada (South Bas tar) Apgearance: Shri Ramkrishna Sharma, counsel for the appellants. Smt. Anju Ahuja, Dy.Govt Advocate, for the State. 5'! DB: Hon’ble suri L.c. Bhadoo a; Hon’ble Shri Sun‘jl Kumar Sinha, J,J, ORALJ DGMENT l (01. .2007) ‘, L.C.Bhadoo, J, i Heard. i ‘ (1) This appeal is directed against the judgment of conviction and order of sentence datedl 03.4.2001 passed by III Addl. lSessions Judge, Jagdalpuri (Bastar), in Sessions Trial l No.463/2000 whereby the learned Addl. Sessions Judge, after l E i l l l l I r GRPR _ 5mm. m holding thC accused appellants Kartam Lakha, th‘i commission of murder u/s 302 sentenced him to undergo life i other accused Kartam Joga for commission of offence u/s 302/34 and sentenced to undergo life convicted guilty for committing murder of accused Kartam Kosa for read with section 34 I.P.C. and mprisonment and convicted the imprisonment and also convicted him u/s 25(1)(b) 8a section 27(1) of the Indian Arms Act, and sentenced to updergo R.I. for l year 85 3 years respectively. (2) p.m. in the night of 04.10.200 3, Nayapara to his village. from opposite side carrying Axe and butchers’ knife in the hands and attacked him with those weapons. The Kartam Lakha, fled from the When both the accused persons came The case of the prosecutian in brief is that at about 9 -10 Kartam Lakha was going from he reached near the girls hostel, The incident was witnessed by Kartam Deva (P.W.2) ‘ and Oyam Deva (P.W.3). The eye Witnesses Kartam Deva and Oyiam Deva came to their‘ residence and did not disclose to any bod accused persons after attacking SCCne 0f OCCuI‘I‘el'lce; and in the morning they went to the site and saw that Kartam Lakha was found dead. Therefore, a meeting was convened in the village and Kartam Dulla lodged the report in Police Station Dornapal. The S.H.O., Dornapal registered the F.I.R. EX.P.1 and left for scene of occurrence, he prepared the inquest EX.P.2 on the body of d;eceased. While in police custody, the accused Kartam Kosa gavega memorandum EX.P.3 regarding ./ GRPRJ l l l L \Uil’i w 50 6W (AA M Wm :.................... ‘. 111 200'\ ..... mam (W) mmm mamma- mafmm wwwiwm é;ai1%naTr%$1 the Axe and in pursuance of that, the weapon of offence i.e., Axe was seized under EX.P.5. Accused Joga also gave memorandum EX.P.7 and in pursuance of the t, a butcher’s knife (about 8” in length) was seized under EX.P.4 The body of deceased was sent to Primary Health Center, Dornepal for postmortem under EX.P.9 where Dr.Uttam Kaushik (P.W.8i) conducted the postmortem and prepared the report EX.P*.9. He pined that the death is caused by acute cardio respiratory arrest ue to hemorrhage and shock on account of cutting of trachea a d right half of the great vessels and right sided 1st, 2nd and 3rd ertebras fracture and dislocation palongwith occipital region of he d. There was a linear fracture. After completion of investigation the charge sheet was filed in the Court of J’M.F.C., Sukma, wh in turn committed the case to Sessions Judge, Jagdalpur, fro Where the learned Addl. Sessions (Judge received the case on tra sfer. The prosecution in order to establish the charges against tihe accused persons examined 8 .witnesses. On the other hand; statement of the accused was recorded u/s 313’ Cr.P.C., ini which he denied the material appearing against them and pliaded that they are innocent and have been falsely implicated in the crime. f r The learned Addl. Sessioris Judge after hearing counsel for the respective parties convicted and sentenced the accused persons as aforesaid. (3) l i GRPR? r?” m rm W’nm M r w W m U~ P‘NOW 1:1 200 \ Warm mm m are»: m (W) mars?! area W?W awm a am Starr WW, §¥i Hi a” W3? buy, m /\ /\ d counsel for the State supported ‘ the judgment of the trial Court. (7) In order to appreciate the arguments advanced by learned P.W.2 (4) We have heard Mr. Rami appellants and Mrs.Anju Ahuja, (5) Mr,Sharma argued that P.‘W.2 Kartam Deva 85 P.W.3 Oyami Deva have been examined as evidence in %e cross examinat were sleeping at their residenc incident, on which they went t Kartam Lakha was lying there, t the crime. He further argued th Kwasi Bhima in their cross exe accused persons made extra judicial confession before them in Panchayat but whereas they were witnesses of the memorandum and seizure memo only and t {rishna Sharma, counsel for the Dy.G.A. for the State. eye witnesses but from their ton, it is evident that when they e, they were informed about the o the site and saw that body of herefore, they have not witnessed at P.W.4 Kartam Joga and P.W.6 .minations, have stated that the 1 ( heir statement u/s $$¢ Cr.P.C. regarding Panchayat and makirg extra judicial confession by the accused was not recorded, thérefore their evidence cannot be relied on. (6) On the other hand, learnef‘ GRPR > i Kartam Deva in his examinatidn—in—chief has stated that on the l He heard the cries of somebody from the site of schdol, therefore, he went to that site and saw that accused Kartam Kosa was assaulting the deceased ,A\ m gnq counsel for the parties, we hfave perused the record. fateful day he was at his residence. d , W W....W g..9 Vi 20m mam m (13W) mam?! amt WW1?WW §r aim 311%?! WW,W,W W maLANDgzg 1a 20m WW<W> Wm mmw m WWW WW wW aasifwanéw /N With Axe whereas the second accused Kartam Joga had caught Kartam Kosa and he (Kartam ga) attacked the deceased with Axe. Therefore, this Witness ha witnessed that accused Kartam Kosa attacked with Axe, similarl Kartam Joga also attacked with Axe whereas the prosecution c se is that Kartam Kosa attacked with Axe and Kartam Joga att ked with butchers’ knife. Mor over, this Witness has stated t at the second accused (Kartam Joga) caught hold of Kartam Kosa. He has not stated that accused Kartam Joga has caug t hold of the deceased Lakha and in the cross examination this Witness has stated that he was sleeping in his house, the daug ter of deceased Lakha came and informed him that her father lying dead on the way at Hostel, therefore, he alongwith Boga went to the place and saw that Lakha was lying dead. There ore, in View this evidence, his evidence in examination-in—c ief that he saw the accused attacking the deceased stands falsified. Similarly, Oyami Deva (P.W.3) in his examination-in—dhief has stated that the accused Joga was carrying Axe and osa was carrying butchers knife whereas as per the prosecutio case, butchers’ knife has been recovered from accused Joga iand axe has been recovered from accused Kosa. Therefore, hisi evidence does. not inspire the confidence of this court. More iover, in the cross examination, he has also stated that at the time of incident he was sleeping in the house, on the next day, the daughter of the deceased came and informed that somebody has rnfurdered her father, therefore, he "\ i L J 3 1 l GRPlx.’ Jo e w 6 m 20m CMNOW/ GRPRJ *A v k, i l 1. l \ r of Lakha. went to the site to see the body In View of the above, this Witncss cannot be said to b‘E the eye witness to the incident. As far as the evidence of P.W.{‘4 Kartam Joga 85 P.W.6 Kwasi Bhima is concerned, they are witnesses to the seizure memo and memorandum but in the examination—in—ehief, they have stated that Panchayat was convened and in the said Panchayat, the accused persons made extra ju icial confession. However, their statement u/s 161 Cr.P.C. was 0t recorded, therefore, it cannot be said that they were Witnesse to the extra judicial confession made by the accused person in their presence before the Panchayat. Therefore, virtually here is no evidence on record to connect the accused persons wi the crime in question. In View of the above, the prosecution ha utterly failed to establish the charge against accused persons regarding commission of murder of Kartam Lakha. The convicti n of the accused Kartarn Kosa 8r, Kartam Joga u/s 302 read ith section 34 IPC cannot be maintained and they are acquitt ¥d of the said charge. Now coming to the conv ction of the accused Joga u/ss 25(1)(b) & 27(1) of the Indian Ar s Act, in View of what has been discussed above, the prosecution has not been able to establish this offence against this accused. Therefore, there is no evidence that this accused attacked witéh butcher’s knife, as such, his conviction u/s 27(1) of the Act, cannot be sustained. As far as the conviction u/s 25(1)(b) of the Act is concerned, it will be proper to i (8) i i I 4‘ i5we 31W m (W) WWW amm m mafaim WW1§WW %aifzmané¥r ‘_ %:1- A )x. 7 WWWW @ W mcmmj a 200‘ WW (W) WWW WWfiWW 1 $mm refer to the notification No.6312-6552—II—B(i) dated 22nd November 1974 issued by the State Govt} of M.P. under the provisions of Section 4 of the Indian Arms Act which reads as under: Whereas the State Government is of the opinion that having; regard to the prevailing conditions in the State of Madhya Pradesh, it is necessary and expedient in the public interest ‘ that acquisition, possession‘and carrying of sharp edged weapons with a blade more than 6 inches long 2 inches Wide ‘and spring actuated knives with a blade of any size in public places, should also be regulated. The said notification was issued u/s 4 of the Arms Act. Learned Addl. Sessions Judge while convicting the accused Kartam Joga u/s 25(1)(b) of ArmsAct, has observed that the butchers’ knife was 8” in length, therefore, the said notification is attracted but the requirement of notification Ls that the size of the sharp edged weapon with a blade must be "’ in length and 2" in wide. In the present case, the width of the butcher’s knife has not been given nor it has been taken into consideration by learned Addl. Sessions Judge in Para 19 of the judgm nt. More over, learned counsel for the petitioner argued that sucfh kind of Weapons are commonly found in the village side which are being used in the houses for domestic purposes. Therefore, in View of the above, since the L . . . weapon recovered was not cove;red under the said notificatlon, the l l l f accused is entitled for benefit of doubt. v l I g “‘1‘ GRPRJ r§M€ voori wn 8 @ WWW WWW WW §€3iwea1é¥r ‘VJ (9) In the result, appeal filed conviction and sentences impo: They“ are acquitted of the of Indian Arms Act. RaO charg accused Joga is also acquitted o It is stated 2000. Therefore, there are direc1 required in any other case. Sd/- ‘ L.C. BHADOO Judge GRHU ~-— FS/246W 2/209? w 95 i “ ‘ r by the appellants succeeds. The ;ed against them are set aside. 'es u/s 302 r/W 34, I.P.C. The :‘the charge u/ss 25(1)(b) 85 27(1) that they are in detention since ed to be released forthwith, if not Sdl- SUNE. KUMAR SINHA , Judge Goa Mo~ 98 W 111 200! Wm (W) v