.e^ft. <ict%t<iy y^. ^^ fe.^-^yi.^.: Father's I&ime CF0000058445 ' /- A£p-fiAL,^.^PRisGNER-.<-/. Name ,,,A(r?N^ \ J^ <<1T^TS^ •~^^~, ^) Resi-6^^er^^^s^8^^ '»Rt-~<<»^^^(^ 'a^s^r .x' ^e -..^.X^.-.sent snce'Q^S'o '_^5^^2tJ-^S^M^,_.,._.,,_.,__on -.».JS:^,.M-'i^-^-_un<3s^ -Sectipn _SfJ^_y^_^^_^fcy •ZSfe..;S"2^S.'L^?'^<^- S.T, ,. !>-1?.2;/<^ .. . : 1 '. " '',:.•,,.. /' • : - It is explained to. the prisoner that lf he states or Wl shes fcp fce repr.es ented by ^ ^ lega.l pracf.itJLoner th8 Appellate Ocurfc vtf.ll not proceed wlth tlie base for seven days unte^s the 1 sgal practltlonei: appeics. *v;'iiE£ the 1 ssgal pra.ctltsicner dces np1; appeay with the seven ddys .he may fce .heard at all lf the priso^er s^ates that- the does nct -wlsh tc be rspr^s ^t e<3 fcy leg<Al pXdictioner the lCburt mciy proceed at crice with the caLse and wlll not be obllged tc glve A hea.rtng to diny legal proct<-r< Iticner who shculd app^ar, 1<» D^fre ©fap^lzcatAon fcr copy' cf -jud^^ 2< Ddteof wh.ich copY ceceived s- 27»)<l-l?'A 3.Da1fce pn •whicb ^ppelisentl s- sc> * t'»- ^tl M 4^ Whsbh^r the prlscner wisheca to fce r^resented 02; rict ^es/J^y- No._n_ Name ••$(T^V^? Sj^ '^^^L Continued in Nb. , ^.7^( • , f^<^Ac^./^ ^@£L.-_-?a^-l y2W ;_ 91^~ __'^^^^L _Ddted _S.^L_^2_- 9^ Fcrwarded fco .the^CH^^'; JUDICXAL MA32ST tcg ether ^ th^ ^^^py ofc ^ dg sment or fcr r^vour of^SrI^sni.isslQn to the prb? the case rt« \. , ;,Superin^^^^t-^t?t^®3./Distt../; i/U S^^^.. •^" Dafe c£ rec6iptcin q.J»M(s Office. ^ ^ j, ^. Date cf receipt of reccrd of accQmpciny, Memo d£ ^pe^l of the ^ppeliicrte 0-^rt» ^ A?_:_Dated ft^f^f <^. yo.rwarded to - ths _H-/6-^ f>i&tf':' c^^^ ^^^! ^nA ^'^t^.^ ^^^ C.J. Maglst^ate,^^;y^ T Dcxt e of receipt ot, x^ppelllate Ccurt, '^ i y'i& H ' . .K '•-•r^ '^ :.'w\ ^ l^ll ' •-^ •J 1 -^.-' XI-HC-22 ^S[ '?qFTf^R,. 'S^PT?, fa<ns^y 3if^T 'q^9?, ^.^.^0.3.^.^ ^ ^ww^w^ '^^8?' CTT^T^T 'f^it^ >3Tlt^T ^Hh:? <^[ia t3H^T ^^T^R ^ft^ <=hl^Id^iN T?TR^T ^ ft^ <Fys<^i< ^ ^T^R a^r &IVISIQNBENCH: - HON'BLEMR. L.C. BHA&OO AND HON'BLE AW. V.K. SHRIVASTAVA. JtJ. 9-12-2005 Shri R.K. Jain/coun^J for the Shri e.K. Beriwal, Additional Pi Agarwat/Panel Lawyer for the State/ Oral Judgment By this Sriminal appeal througt 3ppelJant. ibtic Prosecutor wi1+i Shrj ftGvindra respondent. the Superintendent, Central Jail, Jagdalpur, accused/appeltant Somar^i has questioned the Ie9aJity of judgment of conviction <& sentence Sessions Judge, Bastar at Jagdal| ^asaed by learned 3 Additional sjur in Sessions Trial No.572/93 whereby learned AdditionaJ Sess ions Judge after,; holdihg the accy^d/cypellant guilty for commiss|on of offenceunder Secfion 302 of the Indian Penal Code ^ntejiced him to undergo ri9orous imprisonment for life and to pay f|i payment of fine to further undergo ft I. for 6 mon1+is. The prosecution case. in brijef, is thdt on 26.8.1993 PW-1 [Budhram gave merg jntimQtions Ex.-P-l Sadiram to the effect that today at [niece namely Mang|li (PW-2) camean|J informed him that Somaru has lcommitted murder of (Sovind & Sukhd ne of fts.2,000/-, in defauit of 19 <& Ex.&-20 in the Police Station bout 10.00 a.m. in the morning his l^i with an axe, On hearing this, he along with Manglj went to the placeof occurrence and saw trt^^^ XI-HC-22 •ys( "41*tid<4, ^"^OTS, 1°l^ray \~-' 3n^r t?^? WS-g^lT^RI^ •M 200 •^^T" STT^T^T "f^rw^niST ^*ii<^ <-i[^a up 3?I^T ^TTyT ^rf^T -^ bctdy of (yovind was {ying on the cot an| th|e ground. He imm^diately called the ^ S^khdas, &hansin9h, Chamru, Sahdev,| th^m abou+ the incident. A Panchayat| S4maru was also called/who before t| ju^idal confession regarding committinl Sitnilar is 1+ie merg intimation Ex.P-| inltimations, F.I.R was reduced in writingl the investigation. During the inves de^d body of ^ovind was prepared oind P< of Sukhdei was prepared. The dead bp< se^t far postmortem examination to 5o|diram/ where Dr. Akhileshwar pojstmortem on the body of Sukhdie reibort Ex.P-11. He also conducted th de^eased Sovind and prepared the po Inl/estigating Officer prepared the sil un^ler Ex.P-10. During -t+ie investigati m^i i<ej po morandum Ex*P"2 regarding the plac^ axe was kept dnd in pursuoince of ^session under Ex.P-3. The Investi- _po^sesslon't+ie blood stdned soil and .ehS^fd<sfl<i 'HWtf ^ ^st^rf^F^R '^3rf^H37T^T body of Sukhdie was lying on ijlagers namely AAcxngal, Buddhu, iaidev <& Lakhya and cpprised Iwas convened inwhich accu^cl ie Ponchayat made the extra- murder of ©ovind& Sukhdei. ?0, On receiving 1+iese merg |and Investigating Officer took 'igation, Panchnama Ex.P-21 of anchnama Ex.P-22 of dead body lies of Govind & Sukhdej were the Primary Health Centre, (PW-6) conducted the ^nd prepared the postmortem ^ postmortem on 'tiie body of ^tmortem report Ex.P-12. The ^p plan of place of occurrence ^n the accused/cppellant gave where the weapon of offence jthat, the co<e was taken into ^ating Officer aiso to<?k into ^hin soil from the nsspective Uhaon + ["^ft^.isfe^ XI-HC-22 '^ET ^l^l^iq, ^Tll^^Ko, fa<niH^< 3TI^T T^RR 4-3 C ^n^t^T f<TiL<=b ^n^T sn*iicb <Mf^a ^l^<ytl 5b^!<^""""""*'**"*'***'*'**'***'**'*'lg^ 200 """"'(^8T"""""""" ^TT^T ^^T^ ^Tft?T -5 piaces of occurrence under dccuse,d/a^pellant stained with urtder Ex.P-6. The cot ori which was taken into possession under into pos^ssion under Ex.P-8 and^ into pos^^ssion under Ex.P-9. examination to Forensic Sciencel the F5L report is Ex.P-26. After completion of inve^ against the accused/appeliant h< the Courtof learned Judicial M^ committed the case to learned| from where learned 3rd Additiont received the case for trial. Jhe pro^cutiori in ord^i accu^d/GppelJcnt examined 07 Additional , Sessions Judge) accused/appellant under Sectioiji the prosecution evidence appea| innocent and has b^n fal^ly itr|t: dispute between h im and Ex.P-4 -& Ex.P-5. Clothes of ^ood were also taken into possession ^ovind was sittin9 at the time of crime :x.P-7, one blanket (Kambal) was taken broken pieces of bangles were taken Recovered articles were sent for Laboratory, Raipur under ExP-25 and CM^(d<flrt Hm^if "^ fe^ ifa^K ^3?rf^m3^r : ^tigation, the charge sheet was filed idrein for commission of two murders in ^gistrate 1st Cldss, Sukma, who in turn Sessions Judge. Bastar at Ja9dalpur ijil Sessions Judge, Bastar at Jagdalpur ;?» |r to prove the charge against the Irt/ilnesses. On the other hand/ leamed recorded the statement of 313 of the Cr.P.C. in which he denied 'P9 a9alnst '11m an<^ slxxted that he is imblicated in the crime on account of land decea^d persons. [Tfr^ ^n^^ XI-HC-22 "^s? T5rTrairPT, ^Ti1^1i<o, "f^ray sni^r '^I^F wwii^Hr^ •^ 200 I^F^T* SH^'^T r^i^g^r s-h^i^ 'yfia ^-.•^ -I- ^TT^T i^T^IT ^rff^T wrf^rat^ ^w^S ^ ft^ Tf^^R '^'3Tf^R3T?^T —V+ After hearing the argur^ients of counsel for the accused/appeilant <& Additional Publ(c Prosecutor, learned Additional Sessions Judge convicted and sente^iced the accused/appellant in the monner as mentioned in Para-1 of this judgment. We have heard Shri R.K. IJain, learned coun^I for the dccused/appeHant and Shri S.K. Ber] with Shri Ravindra Agarwal, Panel Lav^ The factof death of Oovind & not been disputed by (earned counse| from that, from the evidenceof eyei|i/itness namely Mangli (PW-2 ) and evidence of br. Akhileshwar Ura^ _/ ' postmortem on, the bodies of ^ovin^ death of Sukhdei A ^ovind were caus^ the nature of death was homicidal< evidence; it is established 1+iat th| wal, Additional Public Prosecutor yer for the State/respondent. Sukhdei as homicidal in nature'has for the Gccused/appellant. Apart ^n (PW-6), who conducted the 4i Sukhdei, has stated that the fcd due to shdck <& hemorrhage and ITherefore, in view of the above ^ nature of death of Govmd & Sukhdei was homicidal in nature. Now coming to the involvemen^ of the accusedin committing the crime in question. There is only one ^yewitness to the incident ndmely Mangli (PW-2). Learned counsel for t'he accused/Gppellant drgued that in the cross-examination this witnessl bodies of &ovind & Sukhdei in the Ihas stated 1+iat she saw the dead ^ovind's house when she went to kQU£jc of-^ovind in tha second day rAorhing for taking animals for'thG [Tit^tfN^ XI-HC-22 ^TI^T^T 'f^ri^snt^ ^H^ <4iia ^£T^TEn^R, •^i^Tn's, ^di^y .3^T '^W IITO^^W^'^'*''**'*^^^^^^^^^^^^" ^ 20° 'l^^w"""""""";"""""""" Wpngal purpo^ of 9razin9. TTierefore, witnessed by this witness. Furtli|6 1+ie accused/appellant was that prosecution was allowed to re-exar^ine so far as the evidence of PW-4 clearly stated in her evidence tholt witnessing the crime to Mangal in be placed on the evider^ce of AAan^al (PW-4) <& Budhram (PW-1) is hear^ay be given to their evidence. On th<s other hand, lear supported the judgment of trid Co^rt- In order to appreciate th| couns^l for the accused/appellanl PW-2 Mangli after piacing .relianc^ has convicted th€,accused/Gppellar| her examination in chief has cledr cow near the house of her Somaru attacked ^ovind with the he attacked with the cxxe, as a on his forehead and blood startc Sukhdei was preparing tea <xnd whei|i grandfather resililt ^l^d^'t^i^dT^ft^'i^i^K ^ 3lf^TH ^T^?r s per his argument crime was not ^ angument of learned counsel for ft/ithout the Court's permission the the witness. He also argued 1+iat is concerned, PW-2 Mangli has she had not disiclosed the fact of ^he ni^ht, -Hierefore, no relicmcecan (PW-4). The evidence of Mangal ^ay evidence, therefore, no value can< ined Additional Public Prosecutor '+ i^ Grgumenfs advanced by learned we have perused the evidence of on whose evidence the trial court |t heFein. PW-2 Mangli in Para-2 of ly stated -Hiat she WGS grazing the and she witnes^d that accused dxe on his neck and ^cond time also of which Govmd received injuries |d oozing out of it. At that time, she asked 1+ie accused/appejbnt as ['Tft^ ^Psl^. > XI-HC-22 ^^ -^HH^ "^te^, "^i^ 37lt^T "q^^ WN^ti ^^l^ •M 200 •^re^T' OT^T^T T<<ii<=h ^^ ^•RW^tn 3?T^T ^^TW^f^T -^ t-o why he has assaulted Qovmd. upoh ilso on her head with the ^xme axe. ijuries received by them in the sajid attack:. When she asked the + |iccused that why he has atracked ti lerefore, she ent^red the house [rol+ier-in-law. The incident was of t|ie evening. she did not discJo^ lis fact in 1+ie evening to anyone an< |isclosed th-is fact to her grandfath ijouse of Mangaf (PW-4) she djd not t|ie cross-examination by learned cour wrf??^ Tnq^f-? fe^t^-^ ^3?NH3?n^i which accused att-acked Sukhdei ?ovind <& Sukhdej died on account em, the accused ran after her, • >f Mangal (PW-4), who is her br evidence she has stated that it ii on 1+ie ^scond day moming,she ijer Budhram (PW-1), but in the |isclose thi.s fact to anyorie. On i^ei for 1+ie accused, in Para-3 of correct that when second day s^e'went to the house of ^ovind to -take tiie cattle for grazin9 and icn she entered the house of <5ovir|d she saw the dead bodies of ^vind & Sukhdei osnd thereaft^r, shej arld disclosed the same fact to him. pc|sition about her evidence made in P tich one is.correct out of 1wo, then sh w wifnessed the assault on <5ovincf <& Sukhtlel byaccused Somaru with the ax|e is correct. Gn cross-examination s •rfi^t she brought the cow and bultock th^reafter, she went to 1+»e house of Ofe niyh I. |went to the house of Budhram ^Vhen a question to clarify the Ixra 1 <& 3 was put to her that i^ replied that the fact that she h'e has stated 1+iat it is.correct <|xnd tied them in the room and ^angat ond she remained there ^^ ^fo^ XI-HC-22 -^E[ '?qTqi^R, ^O^Ko, fN^iniy 3T?i[^T Xj^? Hl^dl ^Hi^****'*'"****'* '"***' ***^T^ 20° •^^8T" ^n^r'^r 'f^Tt^3:ni^T ^w^Tiin ^TI^T I^H^R ^f^ W£si^r1'^TTR^f "^ 'fe^if <fii^l< '^^f^R3?n^T In orcler to appreciate the evid< ^xamine it with the help of surroundin Has corroborated the evidence of tl ^ ^angli carne and informed him ab^ ^ccu^^d/appellant of ^ovind & Sukhde| ojther vilbgers, went to l4i©place of "Ihereafter, a panchayat meeting was Somaru was also summoned and whdre jjjdicial confession.. Even based on tljie tomaru under Ex-P-2, the weapon of L^nder ExP-3. Recovery memo of axe |?i-t+i blood and even the clothes of th< pbssession/ were also stained with blo^ sjtated in his evidence 1+rat Mangli (PjW- <^ttack by accused on ^ovind <& Sukhde Has stated that he examined deced^< oh the dbove left ear in the slze of 9* fbund fractured. He has also stated thbt dp the body of deceased <5ovind also ^juries on the head of ^ovind. If all these factors i.e. evidence! tj^at PW-2Mangli informed him about t|ie mce of PW-2 Mangli^we have to circumstances. Budhram (PW-1) lis witness to the extent that j^ut the death caused by the oind uponwhich he informed the loccurrence and Scm the bodies. ^onvened in the vilhge , accused the accu^^d made a extra- information given by accu^d 1 offence i.e. axe was recovered Ishows that-the axe was stained accused, which were taken into )d. Moreover^ PW-4 Mangal has i4/-2) discJosedfhim thg fact of . Or. Akhileshwar Uraon (PW-6) Sukhdel and found a cut injury wx4wx0-5w and parietal bone was he conducted the postmortem and found that there were cut of PW-1 Budhram to the effect incident, he went to the place [Tft^ ^fe^f XI-HC-22 a^r'cFi f^TOT^^I 5h<-li<t) ^lfeT .~3T^ "•^PTRW, yTl1yit<o, t^irey 3ff^r ''cra^ ^§^<ri89h^i<** '* ^ '^^^^^^^ ^ "fN^y' 200 3?n^T ^Tr^n: ^rr -&- vill^gers of occurrence along with few vill^ig Sovind & Sukhdei; recovery of o|x instance of accu^d Somaru, whic| fdund stained with blood/ corrobo< and with the help of above mate^ reliance on the evidence of PW"2 years of dge from the backward her cross-examination are bound t^ expbin that which part of her s|h: witnessing the crime or Para-3 of has stated that on the next day mo Govmd ^he saw the dead bodie^ explained that the fact -that 3he No1+iing wrong appears to be in court, when there was arnbi9uity statement it was the duty of trial witness in order to ascertain AAoreover, at the time of recordin|g objection was raified by the coun^l Now comlng to the fdct that disclose to Mangal about witnes^ing above that PW-2 was an illiteral <^l^ld^^ TTO^ -^ ft^t 'rf^^K •^a^TETsn^T + and Miw the dead bodies of <e i,e. 'weapoh of offence at the was, as per FSL report Ex.P-26, juates the evJdence.ofPW-2 Mangli iais on record, it is ^xfeto place ^angli, who (s an illiterate girl of 14 rea and the minor discrepancies in occur, But when she was asked to s^atement is correct i.e. re9arding 1-he cross-examination in which she ^ning when she went to the house of of i&ovind & Sukhdei, then she witnessed the crime is correct. t|ie procedure adopted by 1+ie trial be|h^een the two portion of particular court to get it cldrified from the th|e correctness of the statement. the evidence of this witness, no Ifor the accused. IKAangali has stated that she did not Ithe crime. As has been mentioned ^ girl 14 years of age from the [-q^ifi^ XI-HG-22 •yssf ^NH^I, ^Tfly41(o,T°«>lWi< 3H^T ^^K H8NCfll 9hHI<^ •M 200 fat)^r< SIT^T^T 1^;ti?F3Tit?T ^R?^ ^f^a -.< 3TT^T'^TT^R Trit^ -°>- backward side, therefore, her evidelr and i1£ we look into the evidence of Manglidisclosed him aboutthe factj & Sukhdei by an axe;upon which he he saw the dead bodies. As ^jidi. corroborates the witnessing of crim^ NOW coming to question about the by 1+ie accused/appellant herein bef^ forthe accused/appellantwhile^rav^ the last lines of Para-5 of the croi ar9ued fhat from these words it confession was made by the accused^ of the cross-examinatJon has stated Ithat Patel asked the accu^d/appellant -f^at have murdered ©ovind& Sukhdei/ whep the Panchayat is putting such report against him. In order to accept the extr^- required to cxscertain that as to wh< was voluntary and true and inspire th^ is difficult to reach to a definite confession con be reiied upon only '5b!^id^lv1 "RP^ff'? ft^t f^^R '^^P<R3rTI^T nce hcis to be evdluated with care )W-4 Mangal, who has statey that Ithat Samaru had assautted Govind l^ent to the house of 6ovind where I, the evidence of Mangial aiso by Mangli. extra-judicial confessjon made >re the Panchayat. Learned counsel ing attention of the Court towards Is-examination of PW-1- Budhram, 4xnnot be held that the voluntary fappellant/as this witness in Pdra-5 when the Sarpanch, Kotwar <& on account of tand dispyte you 1|hen accused Somaru reptied that question, then they con lodge the + c^-Judicial confession the Court is 'jther the extra-judicial con-fession i^ confidence of the Court. When it c^nclusion then such extra-judicial after corroboration with other [7ft^ ^pa^ XI-HC-22 ^^^[FTI^PT, 'SS^OT^, t^ray 3^if?T 'q^? ^iR^tT ^Ni^* "^ 200 •i^8?' ^T^T^T 'f^?TR731lt?T ^RW^ftn ^TT^? ^RH^R: iafin Thereaflter rUn materjq! evidence in material partic^ of PW-1 Budhram; he Kas stated ^ovind & Sukhdei he informed thel village about the incident. which the accused/appellant was al^ the accused disclosed that a$ ther^ ^ovJnd, therefore, he has committejd examination this witness has denied accused, however, it is true 1+iat chance 1+iat accused SQmaru may and thereafter, they had tied the rope. Thereafter, Sarpanch, Patel accused for about 1 to li hrs* Itj accysed used to confess that he has|< he used to say that he has not witness has stated that it is dispute accused was not talking with If we examine the above e^ making &xtra-judicial confessior dccused/oppelldht with the help stained axe the weapon of offence qccysed/appelbnt, blood stained clo^1 ^N^Ffi^-'W^f ^ 'fex^f T^R^R '^3?rf^RW^l ilars. If we look into 1+ie evidence 1piat on ^eing the dead bodies of Sarpdnch, Patel <& Kotwar of the \ a panchayat was convened in |o called and before the Panchayat was a dispute regarding landwith his murder. In Para-5 of cross- that any pressure was put on the [lotwar stated that there is every awcy, therefore, he may be tied ^ccused/appeJbnt with the hetp of |& Kotwar put 1+ie questions to 1+ie is incorrect to say that at times 1 cpmmitted the murder and at time the murder. In para-6 this to say that on account of land l^ovind & SukhdeL ^idence of this wilness regarding before the Panchayat by |of other evidence i.e. the blood was recovered at the jnstance of lo^thes of the accused/appellant was comhitted corrdct -t- [Tit^ ^P^i^ XI-HC-22 ^^ ^TPTRT^/^^^ 3H^T ^3R 3Tr^T^I 'f^ri^'sn^T 5t)^ICD ^T^<1 TTO^^W^***"'*'***'***''*' **^^^^^^^^ ^ ••1g^sr-""""""" 200 3?n^?T I^W ^rf^T -II- thle taken into possession and ^xme where report Ex.P-26 was sent these articles coupled with the e^ crime, establishes the fact 1+iat judiciol confession regarding comi Panchayat in presenc^ of PW-1 fact of extra judicidl confessi corroborated. It has not comel threat or coercion was made on th^ confession oind it is also establi between the accu^d and the motive to commit the heinous crim^ that the accused macie the extra-il commift-ed by him. In view of the foregoing di opinion that in view of the confession made by accu^d Somar of PW-1 Budhram, recovery ^>f instance of accu^d/appeilant accu^d/appellant stained with bl accused was the author of the cr ground to interfere with the evidehce <=bl<LlI<rl4i'i •Hi^<nT^ feT€t'<^i^i< .^ 3^rf^R 3TI^?T ^ere ^nt to the FSL, Raipur from acc^rding to which blood was present on idence of PW-2, who witnesses the accused/appellant made the extra- ussion of crime by him before the Bu<|h ram. From the above material, the >n made by the accused stands in the evidence of PW-1 that any dccu^d to make "1+ie extra-judicial ^hed that there was land dispute d4ceased persons and that was the which also land support to the fact ibdicial confession and the crime was -t- ?cussion,W€ are of the considered of PW-2 Mangli, extra-judicial fu before the Panchayat in pre^nce ^eapQn of offence i<e, axe at the cxnd recovery of clothes of li>od establishes the fact that the me, therefore, we do not findany fi^din9 of the trial court and the ["(ft^ ^n^^ XI-HC-22 , 'SilT^T'^T f^1?73^T ^>^ri^) ^f^T Roshcffi/- ^ "3^'?;(TPTRT^, ^TTi^^Ko, 'f^ray ; 3H^T '<^^ ^TOFiT ^^icb *'*'*'*'*****''**^*''< '**'***';ff^ 200 "1^^sr"""""""""""""""" ^tT^T'^nw^Ffftn conviction <& sentence awarded to |+»eaccused/oppellant deserves to be sustained. m In the pesult, the appeal o| merit,,^aine is liable to be dismisseld and Sd/- L.C. Bhadoo Judge <=h 1^?^l^li 'RP^ ^ fe^t '(f^f^R ^7 ^rf^H 3:IT^T the Gccu^d/appeljoint9 is devoid of it is hereby dismissed. Sd/- V.K. Shrivatava Judge [Tft^ ^fe^ <>