XtI-189(JaiI)GJ.P.R-(9-94 ^ \\~s-^^& CFQOOOOS0217 No APPEAL OF PRISONER ^ P-,^1/ Name ^D4c-i<sl^|^' ?^7 Father's name *\ C /-s 'IJ!0" i3ench (l"roT f ^ '(<-|q- ^4iFiiy l^ l^^l,'al^lH" <-? |cb'<^UG1,^t 1-1 |-L(c-S'tc^l|c|,teT- Residence ^. ^., ., , ^ ,.,^ c,,. .^ -.^, Age , , ,.. _., ,S-—^— '^i:?pTC 1 '^? i^i- ''6a^-'^'o<et>lci0 "^s" Sentencedto ' ^" A _ _ _ on - '"in /•v-^- •^ Under Section 1Q-^^-^ •I!^cP|^4 ^N •< °q-4"^ I^T§t1^r':U?pT? It is explained to the prisoner that if he st'ates he wishes to be represeated by a legal practitioner the appellate Court will not proceed with the'case for sevendays unless the 'legal practitioner appears earlier. Tfthelegal practitionerdoes not appear within seven ^" he may not heard at all if the Prisoner states that»he does not wish to be repre- seated by legal practitioner the court may proceed at once with the case and will not be obliged to give a hearing to my legal practitiorier who should appear. 1 Date of Application for copy of Judgement Date on which copy received Date pn which Appeal sent D 'S - QS - 1 ^ ^^ Whether the prisoner wishes to be represented or not. .S-? b No .^>_ ^q.i/ ^»-<-:c£t®cT<si^T^y-1/S'7- ,„;, .. Confined~in" ' ' ~ ' "^ 'A*f\<- Jail r\ •^|cb^> -~TSp .NameP^.^ .J^^f^^M ^ f^. Dated r)S.QC. (.^ct^ 199 <^ Forwarded to the _ r^ ^^•^-^K,^^> ^i-^^s^i^i^M l-^y' to getherwith a copy ofjudgement or order passed in the case for favour of transmi- ,,_ssion to the proper Appellate court. •^iSS^S; ~\. laUUal^B Dateof receipt in _ Office Date of receipt of record to accompany the Memo of Appeal to the App^Ilate court ^.(•^* NffS^j tls@a^J •^>''i^ s Dated Forwarded to the Date of receipt in Appellate court 199 DIVISIONBENCH: HCWMbE HON'BLE SEtMDIUPRAOSAmaBDESHMUKH. J. Criminal Aooeal No. 1154 of 1998 Appdtont " Nirmal Tirkey Vs Respondent StateofM.P. Smt. Indira Tripathi, tearned counsel for the appellant. Shri Sudhir Bajpai, leamed P;L..for the State. ORA^JUDGMENT (66W7Q006T Per Dhirendra Mishra. J , The appellart has preferrad Uiis Griminal Appeat under Seetton 374^) of the Cr.P.G.against the judgment of convtetion and order of senterwe dated 18 of March 1998 psssed by teamed Second Additional Sesstons Judge, Rai^rh in S.T. No. 116/1997 whereby the teamed Second AddiUonal S^sions Judge after holding the accused/appeltant guilty for commission of the offence under SecUon 30& of th®IPC senteneed him to undergo imprisonment for life for causing homteidal death of his own father namety Son Sai. 2. Briefly stated the prosecutfon case is that eariter accused/appeltant <^s mamed. However, his wife after teaving her, again grt married. As his seeond wife atso deserted him and^ lived with her parents tha accused/appetlant used to insi^ his father (since deceased) that h® should be mamad but the deceased dkl nrt care as a resutt of whteh on >. / 05.CK.97 In the evening at about 5.00 p.m. when the deceased was cutBng Kaffwl (Jack ^uS), accused/appeltant came there and assauted fte deceased twice wift a wooden plank. On hearing the noise', Gopal Uraon, brotter and Monica, sister of the accused/appeltant came out of the house and saw the ineident. However the appellant also chased them. Reportof the incident was lodged by Gopal Uraon, P.W.-2 on the basis af whieh vtWrg intimaUon of Ex.P-3 and Firet Information Report of Ex.P-4 under IPC was registered. After performii^ inquest report ofEx.P-7 bodyoffte deceased was sent for autopsy to Primary Heatth Cenb-e, Pattialgaon where Dr. Purushottam Suthaar, P.W.-1 conducted the post mortem and submitted his report of Ex.P-11. On the basis of memorandum of the accused/appetlarrt, a wooden plank by sifhlch the deceased was assaulted has been seized from his custody viiie selzure memo <rf Ex.P-9. Btood stained soil and plain soil was seized from the place of occurence vide Ex.P-10. A sealed packet containing vest and dhoU of deceased Son Sai was taken into possession vhte Ex.P-12. The seized arttete - wooden plank and blood steined and plain soil were sent for chemteal examinaUon to Forensic Science Laboratory, Raipur vide Ex.P-13. After completlng the invesUgation charge sheet was flled in the Court of Judteial Magistrate First Class, Dharamjaigarh who In tum committed the case to the Court of Sessions Judge and Uie same was receh/ed on transfer for trial by the leamed Addftional Sesslons Judge. Charge under Section 302 tif the IPC was framed s^ain^ the appallant. The appellant abjured hisguilt. ^EiS? Prosecution in oreler to establish its csss axamined eight witnesses in alt and thereafter statement of the accused/appellant under Section 313 of Uie Cr.P.C. was recorded. The accused denied the circumstances appearing against him in Ihe proseeution case and pteaded innocence. However, teamed Additional Sessions Judge convicted the appellant and sentenced him as above. Homicidal death of deceased Son Sai te not In dispute. Even otherwise consklerfngAe statement of ff'.W.-1) Dr. Pumshottam Suthaar who -.. /, ' • conducted the post mortem proved the report of Ex.P-1 & has found lacerated wound on the left skte of the occipital bone and on intemal examination has found fracture of the bone of OccipNo parietal regfon and the membrane of brain was mptured and blood clottings were found and has ftirttier opined that Uie cause of death is injury over vital organ - bratn and the death was due to shock and coma and the same was homicidal in nature, ttie homicidal death of deceased is established^ c. The convictton of the appeltant is based on the statements of P.W.^ Gopal Tirkey (Complainant), P.W.-5 Monica Tirkey and P.W.-C Hurcia; P.W.-2 Gopal Tirkey and P.W.-5 Monfea Tirkey ars eye wftnesses of th& inchtenfc Leamed counsel for th& appettemt submtts ttiatfrom perusal of the statement of P.W.-2 Gopal Tirkey it.weukl be evktent that he was in ;3> faet not the eye wftness of fte incident as he has macte material Improvements over his dlary statemeirt. Similarly the <ye w^ness account given by P.W.-5 Monica Tirkay can atso n<rt be relied upon because thfe witness has clalmed hereelf to be the^ye witness of the incictent though tn' her diary statement of Ex.D-1 she has stated that she has not wttnessed the incident. Furttier thls wftness has attributed two assautte over the deceased and no corresponding hijuries were found by the doctor performing autopsy. 8. LearnedGounsel forthe appettentfurthersubmils <hateven ffit Is held tti^; the appellant was responsibte for the offence in question, the offenee does not travel beyond SecUon 304-11 of ttie IF»eas ttie same was done without any premeditation, in the spur of momerrt and only a singte injury over V head has been found. On the ottier hand, leamed counsel tor fce State supports thejudgmatf of the trial Gourt. We have heafd teamsd counsel fer th®parfes. P.W.-2 Gopal Tirtwy is undisputedty the real brottisr ®faccused/appellant and son of ttw brother oi deceased and he has lodged the report on ttie same day l.e; on 05.05.&7 namin^ the present appellant as ttie perpetrator of the offence; He has descri6ed the cireumstances in which the offenee was committBd in the First Information Report. In the Court statement also he has stated that his uncte,Son Sai was sitting under the Kathal (ree (Jack InM tre^ and was eutting Kathal, at that time accused/appellant Nirmal Tirkey came with a wooden plank and assaulted Son Sai on his head and he was standing at a little.distance from the place of incklent. AftBr assautting he fled away. Blood started o<zing from the injury on his head and hejett down. At first Moniea came and ttiereafter the villagers came. Hurda, brother of aecused/appetlant and son of deceased Son Sai and othere came on the spot. After the incident, he lodged report of Ex.P-3 and Ex. P.-4 in the police station. 10. The defence fn the cross examination ofthis witness has not been able to .-.-'' - 'r - - elicit any circumstance whieh impeach^s his credibitity or in any manner makes his evidence untrustworthy or unreliable. The statement of thfe witness is to be appreeiated in the light of the faet that he is the reat brother of the accused/appellant and as such he t»sne axe to grintf against the aGcused/appeNanti The tesUmony of Uris wibiess is furfteT corroborated by the statement of P.W.-5 Monica Tirkey who Is none etee than the sister of accused/appellant and who has also stated that at the time of the incident she was m her home and she had seen the incklent and by the time she could reach there the accused/appellant had already given second assault and she has also stated that he tried te chase her. She has further stated that after the incident, Bie accused/appellarrt hatf thrown the wooden plank in the kitehen garden and ran away. In the cross examination, the defence has tried to impeach the credibility of this wftness by eonfronting her witti her diary statement of Ex.D-1. From the pemsal of her diary statement and the account gh/en by her in her examination in chief, we de not find any material discrepaney and therefore simply because she has made some improvement regardir^) witnessing fte assault, the whole testimony of this witness cannot be discarded. The account of these witnesses are further corroborated by P.W.-6 Hurda who has stated that immediatelyafter the ineident he came there hearing the shouts of his sister who told him that Nirmal has assaulted her f^her and thereafter he found his father lying dead; 11. Thus, from 'the statemeht of the above witnesses which is duty corroborated by the First Information Report, the merg intimation as weft as the post mortem report of Ex.P-1, we areofttieconsideretl opinion that the Court below was justffied in hokling the accused/appellant's involvement in theerime in questton. 12. The second question for consideration rf this appsal is whether the Couit betow was justified in hokling the aecused/appellant guitty of offence under Section 302 of the IPC or whether the offence false within SecBon 304-11 ofthelPC? ^ 13. It is not in dispute that there was no mojtive to the accused for causing the deatti of his father. As per allegatiorts, the appellant was desirous of marriage and his father was neglecUng his demand as a resutt of which out of sudden quarrel with his ferther, he dealt asingle btow with a wooden plank over his head. Therefore we'are of the constelered opirrion that ttie offence in question was not committed by the appettant with any premeditation or with an intention to cause death of hts fattier though knowledge that the assautt might cause his father's death can be aUributed to the appellant. In the aferesakl circumstances, theeonviction of the appellant uncter Section 302 of the IPC cannet be sustained and the offence committed by the appellant does not travel beyond Set^on 304-11 ofthelPC. 14. The conviGtion and sentenc®awarded to the accused/appellarrt under section 302 of the IPG by the trial Court are set aside and instead the appellant is convicted under seetion 304-11 of the ITO. L^imed counsel for the accused/appellant submitsthat the appellant is in jait since ( .05.97 and as such he has already completed more than nine years' jail sentence which is not disputed by leamed counsel for the State. In the aforesakt cireumstance ends of jusUce will be served if the appellant is senteneed for fte period already undergone by him. The accused/appellant be srt at libertyforttiwith if not required in any other case. -, / 15. Appeal partly allowed. Sd/- DHIRENDRA MISHRA Judge \ ' Sd/- Dilip Raosaheb Deshmukh Judge