:?^iw-< :^^^'^~r^/^r^s^:^ X(I-189(Jail)CJ.P.R-;9-94 ^.^*l + No Ji- ., „..- '' 7<?a I'S^- -if^r ^)-^^ ^r^^ ^' Name . , /^ .%»7'/-^/q)^ !^1-^.;1 Father's name ••\ Q Y . ^ . . —'',., ^•. ^_' f .'\ @^/(»r/ac '-//•< A//?<;./ ilft'^/f^fSf-W/ffC'fl^l^fi ^^fVf-^f Residence Sentenced to JsL ^yr777 Under Section ^^3 9//-G^~ -Age. €•'?-&./• } '^rf/^V^ffT, 7~ <-?yy on by «<.:> -E<T 9 -3 . Q 45^- 7^ ft. i- ^, •<MA*^xs^-(^,,. g>; Jt is explained to the prisoner that if he states he wishes to be represented by a legal V,- practitioner the appellate Court will not proceed with the case fdr sevendays unless the legal practitioner appears earlier, Tf the legal practitioner does not appear within seven days he may not heard at all if the Prisoner states that he does not wish to be repre- seoted by legal practitioner the court may prcceed at once with the case and will not be obliged to give a hearing to my legal practitioner who should appear. 1 Date of Application for copy ofjudgement _ __s__ ^ ty i .-^ 2 Date on which copy received 3 Date on which Appeal sent VVhether the prisoner wishes to bs represented or not ~€_\ No . ^ • ..^•-SfWWib ^ Confinedin ^ y ,/%? /^~? .'Name ,__,_ (O;,'\.,Q... , ./^_ ~1 \ ^ ^'-f^/f^ y" Q <? fc^ ^ • /^^IT- Jail 9W^ Dated /^(5^?^f (hi^'^^f^ .i^i__ 199t Forwarded to the _^_<\ ^ ^_, _ n _ ^ °<'^w^?-f '^erf^ «-A/- -'y^/r. ^/^^^ ^rie^-^f^f ^)— to gether with a copy ofjudgement or order passed ia the case for favour of transjni- ssion to the proper Appellate court. ' ••iSari.S gijljigsidj WSSBi'fwPfe) •'SSt 3RCLE jAil. B'LASPOB {H.P.l 7r Date of receipt in Date of receipt of record to accompany the AIe@fi_af_Apjeal to the Appellate court \ XI-HC-22 T^ -^WW^, a-tfl'H'is, {sicii+iy 3T1^Wq?raT HIIWI sh<4i<»> ••••••••••••••••••••• ^^ 200 • R'b.ri 3(1^1 ^il R-fi+sii^r sbfif Bf?CT 9fiW^ sn^r g«iiwflrea flf® +w!<-l^l-l WRTT' if tet& <fa+AK ^sri^irsfT^r Division Bench: Hon'bleShri V.K. Shrivastava &1 Hon'ble Shri Dhirendra Mlshra, J. 02-11-2006 Shri Alok Nigam, cwnsel fi^i Shri U.N.S. Deo, Additio)- Gwalre, Deputy Govemment Advcjc Oral judgment dictated on Zps/s Per Dhirendra Mishra. J. the appetlant. al Public Prosecutor with Shri D.K. ;ate for the State. The appellant has preferr«| Code of Criminal Procedure as h< of the Indian Penal Code by 1< Bilaspur, in Sessions Trial No.4331/98 for causing death of Anil Kumaf imprisonment for life and to pay a fine to further undergo imprisonmeht for thls appaal urader Sastion 374(2) of the has been convicted under Section 302 amed 7 Additional Sessiong Judge, vide his judgment dated 22-2-1998, and sentenced te underge rigorous ine of Rs500/-, in default of payment of six reonths. (2) At the outeet, the session himseff on behalf of the defence the judgment. trial was conducted by the ^scused f|or the reasons g'lven in paragraph 2 of (3) The case of the prosecutio was real brother of wife of the Mishra (PW-2), who is brother of Report on 23-8-1998 at about 7.1! i, in brief, is that deceased Anil Kunar app^llant namely Pushpa Bai. Ram Kumar [the appellant, lodged First Information la.m. in the PolieeStation Chakrabhata c^y^) /u XI-HC-22 2 3^^TR1cTO, ©Tfly'lS,Rlcliuy «TmctT{h*ll<*l 3T^?T<^ach '^s'-A- .)^L'i.J f 93 200 f^% 3n^?T?iT f??N;3n^T giiTRTgfer sniRrsHnwBfeT +wtrt41.( WRff it' teA (IWZTC ^sri^irsn^T mentioning therein that deceased[Anil Kumar had gone to the house of the appellant to bring his wife Pushf(a Bai, in connection with Teeja fe^ival, however, the appellant was not in|clined to send his wife and therefore, the deceased stayed in the house of 22I"iQ3rd August, 1998 at about deceased with a knife on his ihe appellant. tn the intervening night of 3.00 a.m., the appellant assaulted the neck causing grievous injurte who succumbed to the injuries. After ^ome time Narmada Prasad, nephew of the appellant, who resided in the|said house woke up after hearing some noise and raised an alarm. On ^earing his shouts, the complamant who resides nearby went to the hous] Narmada Prasad said that Uma S with a knife on his right hand and B of the appisllanf and on being asked hankar has killed his uncle by knife and at that time, the complainant fourjd that the appellant was standing there torch on the left hand. On being asked as to why he has killed his brothei|-in-law, he replied that he has killed and whoever will come near him he shW kill him also. (4) On the basis of this inform information ghren by the complaiil the dead body wasperformed in t] ation, offsnce under Sectron 302 of the IPC was registered and started ir(vestigation. Apart from registering FIR (Ex-P/2), merg intimation (Ex-P/1|) was atso registered on the basis of lant. During inves^gatfon inquest over ie presence of witn^ses and report as per Ex-P/4 was prepared. Body ^as sent for autopsy to Primary Hsalth Centre, Chakrabhata where Dr.) A.K. Sanyal (PW-8) conducted the postmortem and submitted his r^port vide Ex.P/15. tn the report, the Doctor found one longitudinal incpsed wound aboive thyroid cartilage crf (^llt.^fe^) (:•• si XI-HC-22 's^ •<iwi?)<4, sSTnu'is, Rdiyy 3Trc^'cra^ . ^aQ c^-,^. I^M^ ^........;............g^ 200 imdTSBW^) ft^% snSRr^ R-fi+sn^r shtii*(riN' 3TI^TCTgTWHf?(T sbl<llrl41-l WRTT ^ fe^t <RI<-CK ^ari^iTsn^T size 1%x %x2 % cm deep resul|ting in cutting of blood vessels, skin and underiine muscle and one obliq(ie incised wound with abrasion below thyroid cartilage of size 2 x 13% |cm, abrasion of size 12 x % superficjal and resulting into cutting of fractiea, blood v^sels and underiine skin muscle. The Doctor opined that (ause of death was due to hemorrhage and shock. Site plan (Ex.P/5) |was got prapared by Halfca Patwari. J.P. Yadav (PW-7) also preparetl the spot map vide Ex.P/8-A. Blood stained soit was collected neart^y wall and plan soN was taken inte possession from the spot vide E^-P/7. Blood stained beddings and bed sheet were taken into posses^ion vide Ex-P/8. On the basis of memorandum (Ex-P/9) given by|the appellant a torch, the vreapon of offenceknife, a cotton gamcha ^tained with blood, an used bag were recovered vide Ex-P/10. The repy given by Dr. A.K. Sanyal (PW-8) to the query of Ex-P/11 is marked as ^x-P/16. In the said reply, the Doctor submitted that the injury present| knife, however, he advised to senl to Serologist for chemical analysis. over the person could be caused by d theseized gamcha and handkerchief (5) After compleb'on of the inve^Ugation, charge sheet was filed against the accused in the Court of Judfci^l Magistrate Flrst Class, Bilsspur, who in turn committed the case to thel learned Additional Sessions Judge| (6) Charge sheet under Section Sessions Judge, BNaspur, frcm where received the case on transfer for frial. 302 of the IPC was framed against the appellant who abjured his guilt. Tt(e prosecutton in order to e^abtish frie charge against th® accused e^amined nine witnesses. Theresfter (ift^^f^) (^i 4 XI-HC-22 Tsq'Bipn^iq, »Tn«'i6,fsiciwy 311^1 M^Cft "c^'.(\.~ ^^i^33 Kiini stilitn ••••••••••••••••••••• ^ 200 • fa<?«A sn^r^ir R-ii+an^r »^iti;a'f?H sh^lti +i«Ifi'iTI-fm»RffifteA<Ri»i< ^sri^iran^T statement of the accused was re4orded under Section 313 of the Code of Criminal Procedure in whlch h^ denied the cireumstances ap(»aring againsthim in the prosecution ca^e and pleaded that he has been falsely implicated in this crime by his brofiers and his wife. (7) Learned Add'rtional Sessi^ins Judge after hearing the accused/ appetlant and Additional Pubtic F|rosecutor, convicted and sentenced the accused/appellant as mentioned d (8) The fact of homicidal death counsel for the appeltant. Even bove. of Anil Kumar is not disputed by leamed otherwise, from perusal of statement of Dr. A.K. Sanyal (PW-8) and aulcjpsy report (Ex-P/15) where the injuries have been found on the person of|the deceased and where the DoctDr has opined the cause ofdeath was h|emorrhage due to shock, therefore, the homicidal death of deceased is es (9) Learned counsel for the ^ ablished. ppellant submits that there is no eye witness to the incident, the convi^tion of Ihe appellant is based on extra judiciat confession and other 4ireumstenc®s appearing in the trial, however, the evidence of extra Ijudicial confession is a week type of evidence and eonsidering ttie fact|that at the time of incident the appeUarrt was not present ttiere, where th^ deceased was sleeping some other persons were present there. The[Court below was not justifled in acUng upon the sole evidence of extr^ appellant. He further submits t^iat the case of the prosecufion is improbable and there was no moU^ judicial corrfession in convicting the 'e to the appellant to cause tha death of ('ft^y^) i\ Xl-HC-22 5 <i-a| ^l^lc1'i<,^Tf1tiil<i, Rfi-iiuy 311^1 Miicn ^ f^a ^v'l'- 'v^r/99 <n*«^iaiflfNi •.•••'**•*•*•••••****f*^^ f&5% sn^T?RT R-ii+sn^T stitf yl^cT sn^TSRTTWflfer ^rafa^ wRff ffte^ dwzrc ^aRriTsn^T the deceased. The motive of the a^pellant that he was not inclined to send his wife with the deceased was deceased by the appellant. not sufficient for causing death of the (10) On the other hand, leame<|l counsel for the State referiing to the statemente of the witnesses who |are real brothere/Wife of the appellant, submits that the totality of the cir4umstances are taken together coupled with the extra judicial confession c(f the appellant before his brottier. The prosecution has been abte to|establish the case writhout beyond reasonable doubt and there is n4 illegalBy or infirmity in the impugned judgment ofthe trial Court. (11) We have perused the impu^ned judgment as also Uie ocular and documentary evidence available 01)1 record. The FIR has been todged by the brother of the appellant namindl the appellant is e perpetrator of tfie offence. This has been proved b^ Ram Kumar NVshra (PW-2), who has stated that when he was sleepinsl in his housa, he heard the nois@ of "killed killed' and the noise wa^ emanating from the house of the appellant. He woke up, went to th^ house of the appellant and saw that the door of the drawlng room of W^ appetlant was opened, he found his mother Tirtha Bai, Sister Ramkun^ari, nephew Narmada Prasad, Rarea Shankar ete. were present there. 1-^s brother Bavdhatta was atso sleeping there and the body of Anil Kum^r almost dead was lying who had sustained various injuries over his The accused was not present in the neck and he was slow^ his breathing. w room. Injured Anil Kumar was brought to the courtyard and was placed 01)1 another cot; they went for arrwiging ('ft^sloi) c^ XI-HC-22 6 3^SfT!IRW, ®Tn*f'IS,(sKll^y ^.~S£^^^, Hiini snHiw • f^'b'A sn^r^ R-ii+sn^T shHifHfsa' ShHlf SD^TgTdTWHfN' +iold41-1 t<iK<-fTfftoA<R]^i< ^; 3l1^T 3TI^T tractor, however, in the meanwhi e, Anit Kumar died. He has alse stated that the room of the accused is aftacent to the courtyard and the accused was present there. He saw the|accused in agitated condiUon, he was having a toreh in his hand and t|e had placed the knlfe in the room. On being asked as to why he has kil|ed Anil Kumar, the accused did not talk and thereafter he proceeded for and lodged merg intimatton Police Station Chakrabhata with Kotwar (Ex-P/1) and FtR (Ex-P/2). In the cross-examinaUon, he has admitted that he has not seen the inciderrt personally and has not seen the b|ood stains over the knife. (12) Rama Shankar (PW-3), appellant, has stated ttiat Anil who is also younger brother of the Kumar came there to take his sister Pushpa, wife of the appellant, ho^ever, the appellant did not sent Pushpa with him. Deceased slept in the cfrawing room of the appetlant's house in the night where brothers of app^llant including this witness were also sleeping. Around 3.00 in the nigh and found his nephew shouting, !• asked the accused as to who ha :, he woke up after hearing some noise owever, he was not abte to understand his shouts and saw Anil Kumar dilenched with blood who died after some time while they were arranging tra|ctor to take him to hospital. When they kilfed Anil Kumar to that the acciKed had replied that"/ have kllled hi/ff. The accused also informed that he eJLi^jL^jL. killed Anit Kumar wltti knife. The ^ppellant could not.^esitate anything in the cross-examination of this witn^ss, which discredits the version given by him or makes his statement doi(btful. (tft^^fe^) C'^s") 7 XI-HC-22 ~S^ 'i|l'i|lcf4, (St(iu'IS, Isldiuy OT^TT?9T ^T^:lM-i^93 *iiini shli'n ••••••••••••••••••••yg^200 f&^% a.n^T^T R-ii+an^r sbli* (lf?(T 3ii^T?(gTWdf?tl' +l<tfcttfl-f 11H<lTfffe^t<R]W;K SRsiRfon^T (13) Similar is the statement c|f Bavdhatta (PW-4), the brother of the appellant, who was also sleep|ng in the same room, has stated in paragraph 6 of his statement th^t he saw the accusad ran away to the courtyard and he was washing th^ knife near fte gate of his room. (14) Ku. Chandrakanta (PW.1), years, has also stated that in the her maternal uncle, had come to daughter of the appeBant, aged about 7 night of Uie incident Anil Kumar Tiwari, ^heir home and slept in ttie sitting room on the cot. Elder brother Narmad^i, uncle Rama were atso steaping in that room. Her father was sleeping in Anil Kumar was lying dead and ^ his room. In the morning, she saw that le had sustained injuries over his nack. Her mother was saying in the mcjming that her maternal uncle has been killedbyherfather. (15) Pushpa Bai (PW-5), wife of|the appellant has also stated that in the night of the incident she alo^ig wtth her husband and daughter Chandrakanta was sleeping in whereas Anil Kumar, Rama Sh^ thelr room with small child Deepak, inakar, Bavdhatta and ftermada were sleeping in the drawing room. A( about 2 to 3'0 clock in the night, she woke up after hearing noise. She |Found ttiat her husband was not present at that time in the room and she ]heard ttie noise coming from verandah that murder has taken place. She| the drawing room she found her has also stated that when she went to brother Anil Kumar in injured condltion and the accused who was having ^ knife and a toreh in his hands and she heard thatNarmada telling accuse^ that he should have not kiltod Anil. (ifl^y^) ''• u \ —~'"T ': 8 XI-HC-22 'jss -ill.sild'i), »Tfld'is,Riciwy sn^rq^r j^^ c^A.'l^^SS ii*ini shii«n•••••••••••••"•••••• ^i^ 200 (Si*«d SII^T^T f^TR;3II^T SKHit) Hf?tT SiWf> sn^Tg^iTWflfer +i<ilf)<11-f t<iu<-fl fffe<^t<Ri^;i< iKsif^ran^T (16) Narmada Mishra (PW-9), admittedly present in the room stated that around 2.30 to 3.00 in| of a toreh, was falling on his fac( and when the toreh was put off holding the torch, however, he paragraph 6 of his statement, he the courtyard with a knife in his ha| (17) Thus from the evidence o1] that the deceased had come to th| in the night in the drawing room. the appellant woke up after hear| was not present in his room, whei| with a knife and toreh in his ham witnesses that immediately after there with a knife in his hand ani water. Further considering the ex which he made voluntarily before appellant, the involvement of th< estabtished. Thewitnesses examii wife and daughter of the appella these persons to implicate the cross-examination of these witnes theirversion. Bie <frhere nephew of the appetlant, who was the deceased was sleeping, has the night he woke up and saw that light which was coming from outside lane he saw accused Uma Shankar was id not see anything in his hands. In >tated that the accused was standing in id. the above wttne^es, it Is established house of ttie appellant and slept there ^t 2.00 to 3.00 in the night wt»nwife <tf |ng noise, sh®found that the appellant she went out, she found the appellant |s. This is atso the vereion of the other ie incident, the appellant was standing he was trying to wash the taife with (ra judicial confession of fte appattant, |Rama Shankar (PW-3), brother of the appellant in the crime in questioia is <ed by the prosecutim are real brdhers, (it; therefore, there was no reason for falsely in the crime. From the ^ses, the appeNant could net demofeh (ift^^f^) .s" 9 XI-HC-22 3^ -iii.'ilcl'il, S^twi?, pin^y 3ll^l^c» . ^)qq .C.?::.A.'...I.^M.CJ ll*ini shli<n •••^•••••••••••••••" ^ 200 Rre^; sn^r^r R-fi+sn^r Sblili ?lf?!T Sb1 sn^T g^nw Hfer +i<<fcf'!fl-< WRff ft teA <Ri+<i< ^sri^lTBTI^T Gowri <-c o/ •^- 4.. '^ «'" Y. f (18) On the basis of the afores^i opinion that the prosecution ha|s against the accused with the involvement of the accused in thet • reasonable doubt. id discussion, we are of the considered been able to establteh th8 charges lelp of the above ©vidence and the crime in question is estabHshed beyond (19) In the result, ttie appeal is _todismissed ahd is accordingly d SdA ~~"~-] L-C.BHADOO Judge devoid of substance, which deserves to smlssed. (l^y^)