^- APPBAL 'QF , PRISONESR "^^ ^p^l^ '^'^'glsfo^ c^ CF0000066209 N0. _^^^/OLt. Father1s name NQme °s_ -^I-^I^- ."^ -yrry^ '-^T^E/T'- ~--—~ ........Age ..s.^.sc^: ......-„ °\ Residence ^TJ^-^S^l.c!iffS?J..r.~^J^i^.^ Sentenced ^^i^'J^^^^-^^f^-On _ .t35.r.Q.3r.J^%4i.--^._. under section J^}cfatJh^o[i.^__._ by-g^,_^^;^^-.^^^^@r^&r •~Q^TEs~'^^'^r^'^~o^Krf'''''~''~''''^'"''srf^^T^"^s^TT^o'fr^ it is explained to the priponer that if he states or wlshes to be represented by legal pracfcitioner the Appeliste Court will not proceed with the base for seven days unless fche.l.egal practitioner appears, If fche legal practitioner does n.ot l^opear with-in seven days he rnay nofc heard at all* If fche prisoner sfca.fces thafc/he.dQes nob wish fco be repreoonfced by legal practiotioner tho court mQy proceoc3 at once with the case and will not be obliged to give a hearing to any legal practitioner who should appear* 1. Date of A-pplication for copy of Judgement __S.^..°3.'.'^6^[1 2• D ate of which copy received _,..,.,_,_„;. . .„...._../£Z.TQ^ZS'SZ>M 3. Date on which appeal sent __ ._...._ _.. ..... ._...^^_..J.Q.:^^.(d. 4» Whether the prisoner v/ished ,to be representecZ or not-^e^/No. Name . ^'JiU^^ML^..mg^.^^Sl^... Continued in ...^^^7.,,,_ Jail _^^M~^t^^.^^.l3a^ No. ._^5'^,_..^..Dated _^<^:/^^4. ,, 199 7^3 ~^1&MS~^T^ ^f-EF Jwi'c'iA.L"i.^e^s>a .-.&~.! s^q tf-277v77/7y — - • 6j Forward to the"Gi- E^ JUDi'C'lAL"M^e^S>t^sr¥l to gather whicli a copy of order passecl in the ca seF f$r "^Qvour of^transmissiqn fco the proper Appelliate Court. ^W^f^-ftn^-pi^f^) 72. C^'^J'^. Superinfceiideht Date of receipt in C.J.M'S Office Date of receipt rGcard to acconpany Memo of ^ppeal of the Appeliate Court No- .-..-...^ . _. \ ' - Dated Forwardec! to the Siy.eri^-eticle2?^j (ojo4 ^B:t;!^ai3,l&mb^agQ? 199 . C.J. I-3gisbrate Date of receipt in Appeliafce Courfc 11/ih ff-?,.. ^"—^"""—-- T"^i u.?il;{ r. , ' • \ . ' •"'•aa^te^, -f~ ^ /" 11 XI-HC-22 ^Ti^T'^r n^3T[iST "Hf^TT •\.^-:'~-i .n ':^ ^.•'% ^r "^ipn^pT, ^'al<i^(o, fa<ni^^< 3H^T x^? ; ^x..:.^;..,s^a^^ <41*1^1 (htilch """' ~7^ /200 '1^8T"""""""""""""—- ^^T^^TT^R'^r DIVISIONBENCH: HON'BLE SHRI LG BHA&OO & HON'BLE SHRI VK SHRIVAST^ 27.02.2006 Srrit Savita Tswari, counset Criminai Appeal No.868/2004. Shri R K Jain, counsel foi Criminal Appeal No.825/98. Shri Jb Bajpai/Additional Mishrd, Panei lawYar for the Stat PER L.C. BHADOO. J. Orai Judgment dictated on| Criminal Appea! No.868/2p04 Crimirial Appeal No.825/t998 fiiet the same jncident and reiate to dre being disposed of by this com^non jud9ment. Accysed/appellant Madan No,825/98 questioning the legati^ of conviction and order of senteih Additiona! Sessions Judge in. ^ tearned Second Additionai 54^ cnM^^li ^i^crff'? fe^l <py|^j< ^3rf^FT'3T^T /A.J J. ;or the appei lont - Moghnu Korwa in the appeibnt " Madan Korwa in Pub iic Prosecutdr wjth Shri Akh iI / respondent. Dais. fiiedbyMoghnu Korwa and by Madan Korwq are arising out of he -same incident; therefore, they Korwa has preferred the appeai y and correctness of the judgment ie dated 31.12.1997 passed by 2nd iessions tria! No.t49/96' whereby ssions Judge after holding the dccused/appellant guitty for corhmi^ion 6f offence u^U^y ^^<^n ...^,:^^^ '^ XI-HC-22 'STT^T^T [^rlict» ^Ti^T ^^lch ^TT^T '3^c[ -<41<41d<4, ^Ti1<l^<o,cfa<rtl^< arr^r 'q^? ^W^{ 5hH|cb 'r'""""""^F[; 200 •"te^8T""--'-- ^TT^T'^TT^R ^Tf^r -—'2-- 302 read with Section 34 of undergo imprisonmeht for life. Accysed/appel lant Moghnu No.868-/2004 questioning the l^ judgment of convictiojn and orde passed by ^Second Additional No.149/96 whereby learned Secor d holding the ciccused/appetlant guill Section 302 of the Indian Penall imprisonment for life and to pay !akh), jn defauSt of payment of fin^ Accused Moghnu Korw4 proceedings under Section 299 o| absence pf the accused/appel lan produced before the Court on 18,] No.149/1996 was again taken-up 4< as stated above. Brief facts of the pr6secu| iodged a report (Ex.P/1) in the P^ about 3.20 am to the effect th4'S engaged in agricultural activity, nt I? nnpn nnrl invited for meal the Iilidian Penai Code, sentenced him to CM^I<rt4l 'WT^f ^ 'fe^ <r3l^l< IT 3Tf^TH W^T Korwa has preferred the appeal ^gatit/ and correctness bf the ^ of sentence dated 30.09.2004 ^sslons Judge in Sessions trial Additiohal Sessions Judge after ^ for commission of offence under Code, sentenced him to undergo fine of Rs.1,00,000/- (Rupees one- to further undergo fiveyears RI. was obsconding. Therefore, the Cr.P.C. were ihitjated in the Later on; he was arrested and [1.1999. Thereafter Sessions trial ^9ainst Moghnu Korwa and was held rioh coise are that, Jatribai (PW-1) lice Station Rajpur on 28.03.94 at i4t she is reslding in Pendari and is tutchu Korwa came to her residence arld consuminq liqyor. Therefor^ she [^^^r I. " XI-HC-22 •y^^-Ri^.'^^pT^. 1^ray 3TT^T 'q^^ ^T^T^FT ^TI^T ^w^ri^T WR^^^J^ *^*'' *^*'*'**'<*''**''**'*<^ 206 ....... ^^...................., ^qr^r'^TT^R'^f^r -°> - along wjth her husband Ronha taking weal and CQnsuming Hqi their residence. She was ahec following her. Jatribai and Madan Korwaand Moghnu Korw , they stopped Ronha and Rohha on the ground; accused chest and started assaultin< Madan Korwa pressed her hi accused Moghhu Korwa twistec broken. Therefore, she remaj a stpne and assdulted on the which one stroke hit near tl^ other on the forehead and t| this, Madah Korwa and M< occurrence, Thereafter shej Sohana (PW-2), :her son th^ Moghnu and Madan. After SunderPatel On receiYin9 this rep<| the crime uncier Section 30^ for ths scene 6f oecurrenc^ cr?Hl<r!^1-i ^w<!if'^ fe^ <r^^{<. ^^i^rq^i^r ^^J" ui/ent to the house of Buichy and after liqijior, in ,the evening they started for jid of all/thereafter her husboind wds ^er husband were being followed by |a. When they reached near Khutapani acc^sed Mddan Korwa forcefuliy pushec! Moghnu Korwa jumped-and sat on his him with hands and fists. Accused jsband, when she tried t^ intervene, her ieft hand. therefore her Hand was necfstanding. Moghnu Korwa picked up fjace of her husband three times, out of tt|e ieft eye, one, tibove that place and lereby the face was smashed: After ghnu Korwa fled frorn.ths scene of went t6 her resiGlence and informed kt his father has been murdered by |that, she jnforffied Budha Yadav and irt, Stetion House OffiGer registered redd with Section 34 of the IPC, left after' giv'in9 notsce to the Panchas, ^fo^ XI-HC-22 '3^ ^Trai^PT. ^cftzT?TS, fa<r!S^y 3ff^r ^=ra? ^w^ss ^hNrai —»—,^ 'f^^T' •VI f^N-w^r ^HN"Hf^cT .^-:- prepared Panchnama (Ex..P/3) of ^raferah -qre^f -^ fez^ if^K ^ 3?Tf^r sir^r LHie body of ftonha. SHO took into possession blood stained 'soil, pi^in $o51 and'white stone, the weapon of offence under Ex.P/4. Thetloths of the deceassd were taken into .possession under Ex.P/7. Body of Ronha was sent for Postmortem examination. t6 th^ Community Health Centre, Rajpur,, where Dr.Pritctm Ram (PW-J12) conducted the Ppstmbrtem andprepared report (Ex.P/12). The stone in question !.ewe<^on of offenc®was sent fpr the doc^or's opinion Qpid he gave his opinion under Ex.P/13, He opined tha^ the presence of blood on the stone confirms that it was possible 1^o cause injuries, which was found on the head of Ronha. The site|plan (E?<.P/15) was prepared by the Patwari. The merg intimation (^x.P/16) was 9iven by SHO Rajpur and site pbn Ex.P/17 was prepareji by him. Jatribai was -sent for the medica! examination of her inj^ries under Ex.P/19 and .Dr.Pritam Ram sxamined her and preparecj njury Report Ex.P/14. The articies found at.the scene of occJLirrence were sent for seroiogists examiwtion from where rejjort was received under Ex.P/25. He opined that the stone in^ques^on was stained with human blood. After comptetion of th^ investi9ation, charge sheet WGS filed Ggasnst the dccused in the C^urt of Judicia! Masistrate, First Class Ambikapur who in turn com^itted the case to the Sessions Judge [^^^ *- te XI-HC-22 ^T^T^T ^n^^n^r |^iw^?r ^^ T?nzn^pT, ^Til^^ito; fadi^^ ^T^T 'V^K wi^r^Tif^-"-""""""""""-"----^ 200 ""f^^ST' -^ ^^r^rT^T^IN 5- cbWf<rt4^ •Em^f -^f^^^ ^ ^PT 3^ from where learned SecQnd Ad|ditionGl Sessions Jud9e Ambikapur received thecase on transfer fo(l trial. The prosecution in ordep|to estabiish the charge against the accused pefsons examined 18 v</(tnesses. Statements of the Qccused were recorded under fcection 313 of the Cr,P.C. in which they clenied the prbsecution e^idence Qppear'ing assdnst them and stated that they are innocent a(id have been fottsejy implicated in the crsme, We have heard iearrted c^unsel for the pGrties. The homicidal death of t|ie deceased' is not in dispute. As far as the involyemeifit of the accused persons in crime in quesfion is concerned, there i^ only one eyewitness to the incident, i.e.PW-1 Jatribai, wife of tH®cieceased. As far as the accused Madan Korwa is concerned, inj examination in chief,shehas stated thdt he also assauited her hL|sband. The accused perso'n assaulted with stone on the head as a relsult of which he died. When she tried to intervene, she was also as|sautted and her left hand was broken. Accused Moghnu Korwaattac^ed her husband with astone,wherea3 accused Madan Korwa r&str^ined him from prqceedina further dnd accused persons ran away towar^s the forest. - In the cross examination, she has stated stone by Moghnu/ as a resu Ithat her husband was attacked with a t pf which he died on thespot. Moghnu [^ti^^ ^ ' XI-HC-22 CT^r^T f^rtw 3Tri?T ^RW ^rf^T .^^ //-v .(^ ds? •^ET ^ii^id^. ^Ti1y4l<o, Wni^y 37T^T xra^ ^l+<^11^^icb'****^**"*<*' ***'*"***'**** '**<W^ 200 ^*'*<Jct^^'* '****'^ '3TT^T'^TT^R Tlf^T \-(=> aiso twisted her hand therefore, it WGS broken, The accused Madan Korwa has not assaulted her husba^d, he only restrained Ronha from proceeding further, The dccusec| TherefQre, from the above evicjen|i evidence against Mo^dan Korwa reg^xrd ing assauiting Ronha. As such, the conviction of AA.adan Korwa under Section 302 read with Section 34 of the IPC is not based on am ^ — .. ' ;^ '- ~ . . . •' crime in question. Therefore, the| against Madan under Section 302/^ In the circumstances, we are of th|< fiied by Gccused Madan Korwa des^rves to be allowed. As far as accused Moghnu categoricaily stated that he atta< / In the cross-examination of this deceased has Stated that he w< accused persons namely, Moghni| attGcked his father with stone. TIh pbssession under Ex<P/3 and same) PW-6 Sahabir hasalso stated tha't| pm Jatribai came to his house) cftH(<n<fl"1 tTFI^Tf ^ Fs^i iPsl^K ^ 3rf;<P:T 37T^¥T AAoghnu a$saulted her husband; :e, it is evident that there is no tega! evidence, convicting him in conviction and senfence awarded 14 of the IPC cannot be sustained. [e consideredviewthatthe<appeai is concerned/ PW-1 Jatr'ibai has t:ked her husbarid with the stone. l^itness; the defence counse! has not been able to elicit Gny circumsl|ance which makes evidence of this witness un-reiiable and untrustw^rthy* PW-2 Sohana, sori of the .s informed by his mother that Korwa and Maddn Korwa have ic stone in <}uestio^n was taken into has been proyed by PW-3 Sohan. on the fateful night dt about 9-10 and Informed thdt Moghnu has [Tft^ ^fe^ XI-HC-22 ^T^T'SFI ^i<=b 3TT|^ ^iwnfin 4 c- ^^ ^Tpn^R, ^Til-y4i<o, l^ray 3TT^T xisi^ HS^^T %WSF* *' * * ""***<<*^*"**'0<*'?S^ 20° *'*"<fN^IT""<'*"""' ^IT^I "^iTW ^rf^T --1 murdered her husband Konha, by iying dead on the spot. The evi^ stands corroborated by PW-9 B^ maternai uncle Rdnha.his wife/ and ^ CGme to the residence pn the occj taking meal and after consuming iiqij and thereafter Madan came to hi Moghnu is attacking Ronha on which place of occurrence and they savi Moghnu was not present1 there. Th< by the medical evidence of F>W"12 that on 29.03.94 at about 9.30 am the body of Ronha and there wa^s region on the head in the size of There was a lacerated wound in the bone* The mandible bone was fra broken, On fGce and skul! clotted dis-figured, the skutl and th,e man nose was pressed and flattened. found that rib Nos.5-9 were brokei The membrane ahd the brain were ^FlfepfrT ^TR^f ^ 'fe^t ^f^R: '^'^R3??^T ^ttacking with a stone and he is Sence of PW-1 Jatr4bai further lichu who has stGted that his ^o children of Ronha and Moghnu txsion •bf Holi Festiva! and after pr, ieft the house in the evening fe house and inform^d him that he, atong with Sbhan went to the that Ronha wois aireadY dead, fc above evidence is TOrroborated Dr PritQm^ftam who has stated |ie conducted the postmortem on lacerated wound on the frbntal [4 X 2 cm deep up to the brain, size of 3 X 2 cm deep up to the fctured and two teeth were also ^Iood WGS present. The face was ildible bone were fractured. The |0h dissection of the chest, he ih. The frontaibonewas broken; i^cerated. In his opinion, cause of Cll death was, comoi due to brain injury and the same was homiqi^ . ^ « ., XI-HC-22 ^T^T ^INtQl^ ^Tll^^Ko, fa^l^y 3ff^T 'V^fS ^I^^B 5h^l<^ ** *''*"**''^*'*'t**''**'<''*^T^ 20° ••1^^r""—""-"--""-" :3n^T'^T fc'<ich ^^ 9h^ich ^fea ^^.£>.^<. 4 W^T '^TT^R ^Tft^T -<8- syewitnjess the accuse' nature.As pert-he Serologist repor| possession from the place of occ^r blood. Therefore, the complifcjty stands proyed based on the eyewitr|e by the rtedical evidence and also the stone in question by which the a^ found stained with human biood. Learned counsel for the the matter of R^M P^ABHU A^ OF MP reported in 2000 (1) C.€f[ accused attacked the deceased in ling on record to show that the| with an intention to cause his deathl accused does hot trayel beyond Sec'| On 1+ie other hand, iearneld supported the judgment of the tria the matter of ST^TE QF reported in 2004 AIR SCW 24 < injuries on the yitat organs of th^ accused WQsevident to cQuse his Iri order to appreciate ti|i< or^ the stone which was taken into 'rence was stained with human of| the accused in crime in qyestion itn|ess evidence PW-l corroborated circumstantial evidence that xused assaulted on the head was CM^fa<^r1 -HI+KnT1? fe^t ifa^K ^ ^qrf^ an^r sed/appellant placing reliance in THREE OTHERS VS5T^TE -.J. 252 (MP) argued that the the spur of moment. There is accused assaulted the deceased Therefore, offenceaaainst th© ion 304 part II of the IPC. Additional Public Prosecutor Court. Whilepladng reliance in VS DHOOL SIN^H that topking to the number of dcGeasd, the intention of the RAJlASTHAN Qrg^ed deibth e ^argument advanced by the respective counsel, we haye pcruscy thc rccord. Fppm th©medioa!; [Ti^ ^P^^ ^.:4 XI-HC-22 ^n^r^r ^R^icb srri^i ' ^f^a 5h^|cn ^> 4' Y' J @ '^a? ';:qFTI^PT, ^'al^^Ko, {^<yll^y 3?H^T l(5|cb Hl^W 5b^i^ *''*''**'* ''***<<***'***<****^T;^ 20° '^^8T"""""""""""""" ^STT^T ^[T^H: "^fN ?- evidehce/ it is evident thoit skuil 1 found fractured, The right sjde fractured and as a result of blol membrcme were found iQcerated. became fiattened. The face becdmfe and mandibte were found frGcturedJ In view of the above facts, distinguishable oh fac-ts. In that the stones/whereas in the present^ the stone on the skull and chest, mahdible bones were fractured. E\ we^e brokeri. It is true that theri intention of the accused. As per| Court in the case of Dhoo 1 Sin9|i gathered from nature of injury, th^ the ^ecipon used in' causing such iny the fact whether the accused with an intention of causing death aimost all the bones of the head Ribs were fractured dnd the a4 repeatediy on the head which <=t)Nf<vt<flr1 <HI^<A* "^ [^>^ <F^^K ^-yrf^R^n^T ' ^one i.e.frofttal re9ion bone was Iribs from 5-9 were diso found IA/ of the stone, the brain and Even the nose WGS pressed and dis-figured, The bones of skull t|ie judgment of MP High Court is <|:ase, the accused persons threw' case th©accused dttQ,cked with fcs a result of which frontal and I'en two teeth were broken. Ribs is no direct evidence regGrding th©judgment of Hon'ble Apex (supra), the' intention can be part of body where it is cau.sed, inljury which are the indtc<itors of cailsed the death of the deceased 4r not. If we look into the facts, arid mandibte bone were fractured. :fcused attacked with the stone in death of the deceGsed. resillted [Tit^ ^fe^ ^ ^ XI..HC-22 3T?^T^T. T<^ 3?nt?r ^RW^Tf^^T ^.."^' /. pddma ^ ^> -s^'^iraRFt. "N Ti?. ^pray ^n^r ^^R Nfi*1<y1( ^bNicb' "W^ 200 "^x^' STT^T ^RiT^R: TrfN -\0" decolased Therefore/the intention of the large to cause death of the •In the resuit, - 1. Criminal Appeal No,8 Madan Korwa succeedsand th4 sentence imposed pn him under the IPC-are set aside. He is ad 302 read with Section 34 of the| unless required to be detainN in| 2. As far as Criminy accused/qppellant AAoghnu Korwji illegaiity or infirmjty in the jud^r and sentencing the accused the fine arpount of Rs.l,p0,000/- Court which is too excessiye, th| instead^tilereof,we impose a fi paid, then he is directed to fui appeai is dismissed Gccordingly, Lorwft undfer Sd/- L.C. Bhadoo Judge chl^!<yl<4lr1 Hl^dT t ft(st <T^^K '^^T^R3?n^T .ccused/appeliant appears to be writ >5/1998 filed by occused/appeliant same is atlowed. Conviction and >€ction 302 read with Section 34 of |uitted of the charge under Section |IPC. He be set at liberty forthwith jany other case, ; Appeai NO.B68/2004 fifed by ss concerned/we do not findany of the trial Court convicting -Section 302 of the IPC, except imposed on the accused by the trial ^refore, we set dside that part only, i|ie of Rs,100/~. If the fine is not Ither undergo one month -RI. The Hth this modification. Sd/- V.K. Shrivatava Judge jud^ment [^^fe^ ^