-z€2- 4 "'^?'2 ''fe.. r-<- -T-" CFoboooe^? <3-^. 3'^^A^ APPEAL PRISONER Name_,^^^^•_^5'^1_ c ' N6. ^-^.s/ ^? Father's Name ^^T ,,, _^^-^—— Resident^rc^^:^r^T(2-_^CTf-^^siK Age J3.a.£g^_L_ Sentenced to sy7TS^?^...'??v>[?TS;ii*T?::r_.. on-. ;2:.3>;.jL'*-9A, Under Sectioii^%c_^^Tn_S__^_ by ^ '^^-^:T- l^^-r.s^ ••• r3^;^P7 ^^S^TH ^^T~^r -->-r?T^^i ^^- ^z.-^r^ It is explained to the prisoner that if he states or wishes to be represented ^ by a legal practitioner the Appellate Court will not proceed with the base for seven days ualess the legal practitioner appears If the legal practitioner does not Ippear WitKin seven days he may be beardatallif legal practitioner the court proceed at once with the case and will not be obliged to give a bearing to any legal practitioner who should appear. 1. Date of application forcopy ofJudgement :- 2. Date of which copy received :- ^f ^^ 3, Date on which appeal sent :- 4. Whether the prisoner wished to be represented or not :- Yes/No. No. 2-^-2^ "?^.. Continued in .Name r~^ ^^>~^T^f) "rrr ?T^~ .r^ Jail "t^??S C^ No. mc.^ Dated -^T^^-'^:^^' - '2--<=y-Q _ - prwarded to the CHIEF JUDICIAL MAGISTRATE. tegether with a copy of Judgeitient or order passed transmission to the proper Applleate Court- •£^. Su perinten< Daie of rcceipt in C. J. M. Office. ^ 9 "/^ ^ Date of receipt of record to accompany. Memo of Appeal of the Appellate Couri. • No. -..5 ?,..,.._ (teted f3 • ^:c?_^ Forwaided totheM^l-W fwv^'^ ^1^^~ ^^^ @. ft. MAG^^ftB €t^-..'??TO?_ jthe case for favoyr of faUDistt ^ Sub-Jail. ^^«[^?ry: ' ^^^.^^^^.^"•r^y^'^-^-^-- ^y-'-^ww-^'^^-^...^^'^^^ &&te ofreceipt in A^plieate Gourt __._....„. ^^^iS3^'3~''~'"'''—'"'l._'"^"^^3^^^^^i?^^^ DIVISJONBENCH:HON.SHRIVIJAYKUMARSHR1VASTAVA& HON.SHRIDHIRENbRAMtSHRA.JJ Criminal ADDeal No. 3031 of 1999 '^•- -^ ApDellant Vs Respondent Kawasi Madrna StateoflVI.P. Smt. Savita Tiwarj, learned counsel for theappellant. Shri Akhil Mishra, learnedP.L. for the State. vl ORALJUDGMENT (14/06/2006} Per Dhirendra Mishra. J The appellant has preferred this jaii appeai through Superintendent, Central Jail, Jagdalpur as he has been convicted and sentenced vide judgment dated 23.01.99 passed by Presiding Officer, Speciai Coyrt, BastaratJagdaipurihS.T.No.18i8/98f6rcausingthe<:leathofhisfather namely Kawasi Bijja under Section302 of the IPC and sentenced him to undergo impriSQnment for life. Case of the prosecution in brief is that accused/appelJant is the son of deceased Kawasi Bijja and the^ resided separately. However.the lands wererecorded jointlybi.it theywere cuttivatingtheirsharesseparately.The accused/appedant used to morigage the land and spent the money so obtajned ,on liquor. His father i.e, deceased Kawasj Bijja stopped him several times from mortgagmg and because of this animosity on 06.08.97 when deceased Bjjja ;was sleepihg in the house accusecl/appeJlant Kawasj Hadma went and threatened him of kiliing and assaulted with axo over his head several times a.s a result of which Bijja djed. The incident ^ -^. was seen by the son of deceased Bijja namely Baman who resides with hjs father. First Infprmation Report (Ex.P-1 ) of this incrdentwas lodged by P.W-1 KawasiMangdu,son ofthedecteased on 07.08.97 atabo^^^^^ hrs. on the basis of which offence under Sections 323/294/506-B of the IPC was registered. The deceased was initially taken to the Primary Health Centre, Bade Kilepal where P.W.-8 Dr. N.C. Laange examined Kawasi Bijja and submitted his report of Ex. P-9. Looking to the nature of injuries, he referred him to District (Mlaharani) Hospital, Jagdaipur for furthertreatmentandalsoforthepurposeofX-^ was examined by Dr. Govind Singh (P.W.-7) who noticed fracture of parietai bone. However the deceased succumbed to the inju^^ 13.08.97. Merg intimation was given by Constable Santosh Kumar on 18.08.97. Inquestreport of Ex. P-3 over the body was prepared on 14.08.97inthe presenceofthewitnesses.Onthe basis ofmemorandum crf accused, the weapon of ofi?encea-axe was taken tnto possession under Ex/ P- 4. Blood stained clothes were recov^red from the appelJant^^^^v^ Ex. P-5. Blood stained soiiand plain soil was taken into ppssession from the place of occurrence vide Ex. P-6. BIood stained bed sheet was recovered vide Ex. P-7. Body of the deceased was sent for autopsy on 44.08.97 to the District Hospjtal, Jagdaipur where Dr. Govind Singh conducted the post Imortem and submitted his report vide Ex.P-11. The app^llant was arrested on 19.08.97 videarrest memo of Ex.P-12. Afl:er completion of the investigatjon, charge sheet was filed in the Court of Additional Chief Judicial Magistrate JagdaJpur who in turn committed the case to Sessions Judge, Jagdalpur from whpre the leamed Presiding OfHcer, Speciai Court Bastar at JagdaJpur received the case on fbr trial. Charge under Sections 506 and 302 of the !PC was framed against the appellantwho abjured his guilt. The prosecution In order to establish the charge against^^^^^^ examined as many as nine witnesses. Statement of the accused was recorded under Sectipn 313 of the Cr.P.C. in which the appellant pleaded jnnocence and false implication. However the Court below after hearing the counsel for the parties acquitted the appellant of the charges under Section 506 ofthe IPC and convictedhim under Section 302 ofthe IPC as mentioned above. We have heard Smti Savrt ShriAkhilMJshra,leamedP.L.oribehalfoftheState. 5. Homicidal death of deceased Byja is not in dispute. Even <»therwisetaking into consideration the statementofP.VV.^ the MLC repprt of Ex.P-8 and post mortem report of Ex.P-11 homicldal death of deceased Bilja is established. P.W.-8 Dr. N.C.Laange, who examined the deceased on 07.08.97 has found following injuries over tRe person of the deGeased : i) Lacerated wound vertically placed in the occipital region in the size of 1"x ^cm. x % cm. ii) Lacerated wound in the right side of theparietal bone inthe sizeof1"x%cm. x 14 cm. iii) Indsedwound in front ©fthe teftear in thesize of 1" x %cm.x2cm iv) Incisedwound overrighttemporalregionin^^^^^ 1 % " x %" x 2 % cm. and contusion over left eyeball region. As per X-ray report of Ex.P-8 and P-8 A there was a fractyre ofthe right parietal bone; As per posfmortem report of Ex. P-11 the doctor ^ noticed depressed bone fracture on the right frontal bone and de^p^^^ bone fracture on the left frontal bone. The membrane of the head was ruptured and the cause of death according to the post mortem report is given as brain hemorrhage due tp injuries over head. The same was homicidal in nature and injuries caused on the person of the deceased were sufficient for death. Learned counsei for the appellant submits that from perusal of the injuries described by PAA/.-7 |Dr. Govind Singh jt is evident that no incised wound was caused to the deceased and all the injuries we^re Since 1t is alleged that the appellant assaulted the deceased by a sharp edged weapon - axe and who died almost after eight days of the incident andno injuries were found on the person ofthe deceased, the intention pf the appellant in causing the death of his cwn father can not be inferred andthereforetheoffencedoesnottravelbeyondSection 304-11 of the IPC. On the other hand learned couns^l for the State supports the judgment of thetrialCourt. We have heard leamed counsel for the parties. We have perused the charge sheet as also the documentary and oral evjdence^^a^^ record. The conviction of the appellant is based on the state^ P.W.-2 Baman who is the eye witness to the incident and who is the son of the deceased and real brother of the appellant. Report of the incident was lodged by P.W.-1 Kawasi Mangdu who is also the elder brother of the appellant and in the First Information Report the appetlant has been named as a perpetrator of the offence and the circumstances under which theoffenceisaliegedtohavecommitted. P.W.-2 Baman has statedin his deposition that his father Kawasi Bijja (since deceased) resjded with him. C^-10. Accused/appetlant ^awasi Hadma assaulted his father with axe and which was seen by him. Apprehending that accused/appellant might assauif him also he had fled towards the forest. His father was taken to the hospital and eightdays after the incident hisfather died. He narrated the incident to his sister in law Sanni. P.W.-1 Kawasi Marigdu (Complainant) has also stated that his father resided with his younger brother at the time of the incident. The accused/appellant used to seil the land without informingothersand spent the money on liquor, on this account hjs father used to reprimand him. On the date of incident he took his father to the hospital who died after five days. His brother Baman tpld him that the accused/appeliant assaulted hisfather byaxe. ^. 11. P.W.-3 Kawasi Sanni has also stated thaton the dated of incident her brother Ih law hamely Baman came to her house in a frightened condition and informed that accused/appellant Kawasi Hadma has assaulted his father by axe and killed him. Thereafter she went to the place of incident andsawtheinjuriesoverBijja.HoweverBijjawasaliveatthattim 12. The defencein the cross examination of these three witnesses has not been able to elicit any circumstancewhich makes the evidence of these witnesses untrustworthy or unreliable. The statement of these witnesses is dulycorroborated bythe MLC report of Ex.P-8 in which the corresponding jnjuries have been found on the person of the deceased. In the post mortem report also the injuries as alleged bythe eye witnesses have been found. The statements of these witnesses are further corroborated bythe promptly lodged First Information Report wherein the name of the appellant is mentioned. % 13. ^ So far as theargyment ofthe counselforthe appeilantthat lookingfothe nature of the jnjuries present on the body <?f the deceased the o^ does not travet beyond Section 304-11 ofthe IPC, is^ concerned, from perusal of the MLC report of Ex.P-8 and also the post mortem report of Ex. P-11 we find that several assaults were inflicted bythe appellant over thedeceasedresultinginmultjplefractureoftheparietajboneartclthus taking into consideration the weapon of offence, the part of the body over which the injuries have been inflicted, the arguments of the counsel for theappellant cannot be accepfed that the appellant did not cause injuries with an intention to cause death of his father. Thus, on the basis of the aforesaid discussion we are of the ppinipn that tiie prosecution has establishedthechargesagainsttheaccused/appellantbyleadingpositive evidence beyond reasonable doubt and the Court below has pot committed any illegality iri holding the accused/appeJlant guilty in convicting andsentencing him by the impugned judgment. ^. / \/ In the result, the appeal being devoid of merits is liable to be dismissed and it is accordingly dismissed^ Sd/- V.K. Shrivatava Judge Sd/- Dhirendra Mishra Judge