22 9 the £ WW,W,W . E9 (N0 Qg7/’ mm (W) 111 U16 “73$ XI-H€—-78 mam (W) WW,W,W U). 57M Mo eight/0} mm wt 200 whwm ammm WWW suincient to cauS€ dean pence custody, th6 ac pursuance 01 that, 116 g wniie 1'11 ‘ o banlyan and fuii pant of accu \ Secfion P—7. Site pian HEX; 17-8 prepared. Knjfc was S6111 to the Dmaartment of Fo'mnsic Medicine, EL d.N.M. Medicai C0116 Eanjay Kumax Dadu, As: the body of L€khra1n could be C bv said kiiifé. He {impaled réport Ex. P—l 1. Diagram 3. injun'ES of Lekhrai haulai war€ $eized' undEr 3 plaC€ Of OCCUIT€11C€ “T’aS 111011 was examinEd bV Dr. reparea uncier EX. P—1'2. ed by Ur. Sunii Kiiemka (Kw. 1U]. He pmpared repor Ex ~ 5—A. Injuries of Phulsshwari Wero Examineci by Dr. S‘mil Khe ka alld roport EX. P- ié—A was; pi‘eparéd. After compieting investigation chaigE snoet was med m the Court of Judicial Magistrate rust mass Kalpur wno 111 turn COmmltI€Cl $6 ca5€ t0 Ul€ b€SS1011§ d11£lg€ Kal‘pur hOm V‘ZllélE married Aadmonai bossions Judge received The case on uanslei Ior Trial. 4. Prosecution in orrier to esrabiish the charge agaiust the accused examined 1i W temeut of the accused was recorded under Section 313 of. C .P C. in which he denied the material appearing against him in e prosecution evidence and stated that. he has been falsely implicated in the crime in question. Learned Addl. Sessions Judge aftéiuhearing the counsel for the d;a B 1 st:’ aused m t P 1 ; ta th )G-HC—78 mw,m,m ._XJ-H€——78 Aw 19‘4”) W m H71 200 a8 This / WW, Wm,W m; Nat 916200} u- . . W W w: '+200 Wm (W) mmm mWiwm ’ %&‘fcma1%¥r '7. As far as involvsnmnt of T316 accussd in m6 crinm in question is concenled, ieanled counsml ,fdr the appsliant arguwid that accusai was not known mwfw’a; am‘mm S3€s anct me incident took place 1'11 1116 ciark night, themfor Witnesses wm‘e net abie to identify the accuseci, mtgmovsr ic identificatién parade was conc‘iucmd, as such, the iwosacution iias not beén‘ able to establish u jJeyond reasonable doubt that the accused was author of the crime 111 QU€ST1G1L 8. On the other hand Earned counsei for the‘State supported tie Juctgment of the trial 1 9. 1n omer to appre uinents advances by the counsel Ior the panties, Ne nave p rused the evitience of PW. 1 KamKumar who has stated that i1 the fatefui night, Lekhram, his brother—in-law and sister Phuieshwaii were sieeping in one room of the house which was turder construction whereas he aiong with 111s Wtte were steeping in another room and other persons were aiso steeping 1n the same noise. when he heard the cries of wife of Lekhram, he woke up ani went toWards the room Where Lekhrain was sleeping. He saw Bilauial in the room where Lekhrain was sleeping. He slapped him but he ianaway. When he enterec‘t into the room 0t LeKnrarn, Ale. saw atstab wound on the chest of Lekhrain, He chased Bhauiai hut he entered hisi‘house and closed the door of the house. Thereaften‘he returned to the house and took Lekhram to Khenka Hospital Police were informed on telephone. He lodged report in the police station which is Ex. P—l. 6 e h n " g At about 6.00 am. Lekhra Hospital. in cross—examiné asking by his Wife, went tn‘awards the piace of occurrence and saw that there were 15 to 2C helping Lekhi‘am to staim about 1.00 am. in the mg reached to the spot, there i ft. ‘from the accused. wm him, thereafter he disappe accused entering his house. When they Went for sleep, light was switched bff. Accused was n1 succumbed to the injuries in Kh€mka n’ion, ha has statsd that h€ woke up 011 persons standing, 5—1U persons were up. Cries of ‘tinef, thief were heard at ht. Within minutes of his Waking up, he Vas darkness, he was at a distance of 8U in accused started running, he chased ared, therefore, he returned. He saw the not known to him prior to the moment, when police brought the accused then he came to know the name of the accused. has stated that in the fateful night at 10. RW. '2 Phuiesnwan 1.36 am, the accused came near to her and touched her body trom up and raised cries. She asKed her husband, her husband also raised cries, on which, the accused attacked him with knife started oozing out. In the house came. His brother—n also came. The accused r2 even Ramkumar slapped e accused 2’4 times. When she tried to ked her also with the knife, as a result injuw on her hand. Thereafter her pital. in the cross—examination, she has on chest as a result of which, blood meantime, the persons sleeping in that 1—law Ramkumar, Alakhraun and others m awav. TheV chased the accused and intervene, the accused atta of which, she sustained husband was taken to hos waist, therefore, she woKa \XI—HC‘78 WW,W,W gem. 9294/0) 5 W m wt 200 mm (We) am‘mmfaw’m WWW mmawm WWW emanate x XI-HC—78 WW,W,W l\ 0g Q .Me’ ozg'h/bl W m H1 200 mm (W) WMifaém ‘ %$ii%mm wjmm anésranm r WWW stated that when thev raised cries, Within minutes, persons came. Whan Lhess pasons cams, 3116 was 110x knowing Who attacked, but 011 a question put by the Court, this Witness has stated that the accused attacKed ner hus C1, she saw the accused on that day, that is whv she is saVi that the accuseti had attacked her ’hushand. 0n the suggesti n by the counsel for the defence, this witness has stated that it is incomect to say that on asking by pohce‘, she has taken the naine of the accusee‘l that he is the hand. From the. evidence of these two witnesses, if is estahiished that the accused was the person who attacked Lekhram. 1 1. As fal as the argume 1t ofthe counsel for the appeilant that there Was dark night and identification parade has not been conducted, is concerned, because. the accused attacked the deceased with such a ck se range and initia‘dy he came and touched the bodv of Phulesiiwari and thereafter on raising cries by the deceased and Phuiesiimari, Ranikumar came and tried to intervene and even he chased him, therefore, in the above circumstances, it cannot he said that these persons were not able to see the accused properly and identify nun The first infonnation report was lodged by Rainkumar in the same night at about '2. 1U am. whereas the incident took place at 1.30 am and as per the evidence of PW 1 - Rantkumar, the accused was aiso brought by the police 'hv that time in tie night itself, Ranikumar chased and X he saw the accused entering his house, therefore, the above fact p51‘SOI'l Who a‘HaCKEd DC}? 111 1 h n s \ XI-HC—78 mmmm 6 g w mam o mm m 200 Wm (W) WWW awmm WW 1‘3étW mmm ’m‘wmm $3, also con‘oboraies th€ evi ence of Ramkumar that he was able to idemjfy the accused. RW. 2 Phukshwari aiso sustained injurv on her palm, and when she was intervening, the accused attacked W1t11 knife and that has been proved by the RW. 10 D1: Sunii Khemka who examined injuni of Phuleshwari and prepared report EX. P— 16-A. As umar and Phuieshwari were abie to Videntify f'ne accused from a close distance, therefore, even if the identincation parade was not conducted, it does not affect the prosecution case. A 1'2, The hnife in questi n was recovered on the memorandum EX. P—S given by the accu ed under Ex. P—é at the instance of the accused. Even though tie witness of memorandum of seizure namery P.W.5 Dauram as been deciared hostiie, but the Investigating Officer RW. l Shivkumar Pandev has categoricailv stated that on 5—4-2000, e accused gave memorandum EX. P—S and in pursuance of that, accused got recovered the knife tuider EX. P—6, There is no reaso 1 to disbelieve the investigating Officer. ‘i'ne knife in question was sent to RW. 8 Dr. Saniav Kumar Dadu who after examination of 1e knife gave opinion that the injuries which were found on the dy of Lekhram could he caused bv the Knne m question. Thereforr , in View of the foregoing discussion, we. are or the considered opinion that the prosecution has been able to establish the fact beyond reasonable doubt that the accused was author of the clime in ques Lion who inflicted the iniurv on the bodv e R k h 1 7 o XI-HC—78 mw,mm “gawk 5194/0) WT m a1 200 XI-H€—78 33am, WE, GANNO‘ &9 W 9M p.» C) Wm (13W) aWmW Ha. mamm- mmm mm wm $Wm intention to cause death and whfm inflicting injury, 116. intend€d that thf: injury which I1€ dsath coupkc‘i with the intention to cause death. Appiying the above principie in the present caSe, the facts of the present case iire that the accuSed came in the room where deceased Lekhram / along with his wife ‘Phuieshwaii were sleeping. In the first inatance, when he touched the body of Phui‘eshwari, She woke up and raised cries on which LeKnIam also woke. up. in order to escape, the accused attacked with the knife véhich ianded on the right e this case that the accuse knife with intention to can: bodilv injuw which is sunk cause death, therefore, on 304-1 ofi.P.C. is made out 1 ‘16. in the result, the a S€1lt€1lc€ mDOS€f1 1113011 U1 are set aside instead there of LPG. and sentenced to that the accused is in detention since 4—4-2UUU tin date. Therefore, ;i to set off of the above detention period tide of the chest. There is no eVIdence 1n i, in fact, attacked the deceased with ",e death or with intention to cause such :ient in the ordinarv‘ course of nature to the given facts, offence under Section 1gainst the accused. ppeal partly succeeds. Conviction and e appetlant under Section 302 of 1.P.C. )f, he is convicted under Section 304 — I undergo Rd. for ten years. it is stated the accused shaii be entitle undergone by‘hun. Sdl- L.C.BHADOO Judge agMtA- . t éwuwamatwr‘ WW in 290 is causing is sufficient in the ordinary course ‘of nature to cause W