r-^ ) XII..189(JaiI)ej.P.R.;994 . _CFOOOO%i%W'/ ,' ' CszA V\vA^ ^ T APPEAL OFPRgSONER No _ ^ _ Q. _. ,&^(^.^^^T^^ Fathefs name ^ Residence y.) Q. - . _ Y?k^'?.S 45,^ Name ?\ ^ ^. ^.^^^^^ ,.—^^ - -—^^^^^^ ^^^^ ^U^^^ ^\^ ^^^^^\e^\^^lt^<si\^^: ^^•) 'Zisa -. _ r\ - _Age — OK- y^ _ __. Y\' Q.'\^^ ~ ". ^^ "^^ on \L /, -^-^ ,—^., Sentenced to o f) • . ,_ • ' _ on _\ L .L ^"^^^^qu^^^ ^ •/" ~"'7' Under Section ^^V^-^^-^^by _ 1 <^ ^.^3 ^^s^^^^ ^\[ ^ <. ^^> ^ ^^M^ ^l^^ ?t is explained to the'prisolier that ifhe sMes he wishes to be represented by a practitioner the appellate Court will not proceed with the case for sevendays unless the legal practitioner appears earlier. Tfthelegal 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- sented by legal practitioner the court may prcceed at once with the case and will not )liged to give a hearing to my legal practhioner who should appear. o ^ (^' a ^ / .^ &) ^ ^ f<y/^^ /(^fi^t Date of Application for copy ofJudgement 2 3 4 Date on which copy received Date on which Appeal sent -x^^t. -f^-^A^ Whether the prisoner wishes to be represented or not Q; r/dT No No Confined in . IK^r<l & ^-A 7^7 J 20 Jail ISame _'\_ _ _. ^f^^,^^/^ C/6 -y/<;L^; ^- -/'^ c^ f <./ ^<- C^ '^ -^5^/ J Dated ?1. ^.. ^_ 199 Forwarded to the 7-^T <^f^^f<, ^b^-f'^^f ^{'jH^c^ ^< (6Y^'^</ to gether with a copy ofjudgement or order passed in the case for favour of transmi- o the proper Appellate court. ^^ ^' 'JATl SU^WNfEWaEWT, a GiRCgt^AtllfiBrf^&tft <M.P-) V- . Jail ^ 1.-,.. Office Date of receipt in Date of receipt of record to accompany the Memo ofAppeal to the Appellate court f-^ ^. --T. . '^"- _ . . ^ k;'.^..A y^..^..__^4^-A^^^^-^^^ ' ^'' ^ }• - ' ( tf-- ^ . ..^ l r •' G ' ^ ..^ WU^f . ^.-^-_ ^ -flt ^..-.^ ^- ^ ^•^.-^.^ i ^.,... i^.^^-^ /) ,^%^ ^x,-'-^^'T tv^ci r^ No Dated Forwarded to the MA:t ^. >WJ^M..6Z3 ^^-SSSS.^.SS^.'W^WSi- u' ^^<.. Date of receipt in Appellate court 'r> "ff ^r.'\^^ ^i w^- (P.T.O..) <' I.. J--.; N '.;:• } \ ^ XI-HC-78 3TT^T^)Tf^ri^ cTSTT3TT^T5h^icb ^—r |*-11 *-lc<1Jli«»HI<sh 3^^i^i^^.^^{j^iRt^i^^< (:A-A- ^o.ni^/ 1^ W®F•——:*'•—**•** %^;i|r ^ij^i,N^w(^i^X^ ^RTT^K^f^TW^Tl DB: Hon'ble L.C.Bhadoo, Hon»bleShri Suail A|cting Kuijaar 24.1.2007 for the appellant. ity Govt, Advocate , for the State. Shri AbhayTiwari, Shri D.K.Gwalre, Dep^ Arguineuts lieard. Oral Judgxnent dictat^d on dias as foUows: <=t)i^Fci41-i ^i^^*^te^'kRt^K H - - ^3Tf^R"3TT^T ; ^n .. [ :C.J. fiB Siaha, J cdunsel Per Suail Kumar Sixiha, J (1) This appeal is direct^d against the judgnient of conviction aad order of sentence date^ 16.04,1999 passed by the Additional Sessions Judge, Bilaspur, i^. Sessions Trial No.320/1998, whereby fhe appeUaat has been c sentenced to undergo impi|isoimient for life aiid to pay a fiue of Rs.100/-, m default ofpay3|nent offine to farther undergo RJ. for one laonth. (2) The case of fhe prose a.in., fhe viUagers were ta] viUage. At that tj|ine the d gone to take wate|: froni ib scene of occurrerice and abused hnn, on d^nial of ^nvicted u/ s 302 IPC and has been cution is that on 26.5.3i998 at about 8 |dng water in a pubUc {haa.d-puinp in. (eceased namely Santara Bai had also !|e Pump, the accused apP^ared at the 4sked Saatra Bai as to why she had ^antra. Bai, he, with fhej help of a lathi o. XI-HC-78 W^T^T^Jch ^T3T[^Tst)^icb h—r +11*1^1 5h*11<sh 3^T ^Ni<n^, ^Tfl^^Ko, fadi^y •••••*»•••••••••< •/• • ^ ^ 200 S^l^l ^?lch (<i^^<s<^;ST) ?^TW^f?cT3TI^T -2-- which was fitted wifh aii ^ parts of the body of iastan.taaeously. The in^i husband of the deceased a.ni. on the saaie day was lodged ia fhe said accused appeUaat was scene of occurrence aad aiid p^H< nalaed Ex. P-4, prepared iaquest vide Ex. P-5. He also prep^red on the basis of £aemiora4duia Evidence Act, seized the Under Ex. P-9, he seized the place of occurrence Bucket etc. The body Prmiary Healfh Center, G.Venkatesh (P.W. 10) fhe body of the deceased Ex.P.12. The Doctor <=bi^1>d41^ ^i^<nT^tel:A<Ri^i< ^^ri^TCT^T |lon ring, gave repeated blows on the vital ^a&tra B^i, who fell down aiid died Ittter was reported to the Potice by the ^iamely Devi Shaakar Yadav at about 10 fhe First Infoniiatiou Report (Ex.P-1) c^lice station u/s 302 IPC, ia which, the 1. The iavestigatmg officer left for thie [after giving notice to fhe Pancfzas vide ^eport on fhe dead body of the deceased site plaii vide Ex. P-6 aad thereafter (Ex P-7) recorded u/s 27 of the ^reapon of offence (Lafhi) under Ex. P-8. plain. soil aiid blood staiaed soil frora laiid he also seized other articles like fUie w^s sent for postinorteni exaniiaation to ^epat under Ex. P-11 where the Doctor con|ducted the postaiorteia examination on and prepared postoQiorteni report vide that fhe cause of deatli was due to opir^ed iajuries caused to skuU bo|ae (vital orgaa) aad duration was wiftiia Xi-HC-78 ^RTL3IRILsbJHICb i.-' 3:^^tNt^t^ ^ fflmfmiitT€-4?:^<<l7u^ft 200 i-11^1 M^:<t!> ^^ ?<RIT^T^Tf??f3:n^t 'z' Ch|ir; six hours, The deatii was fhe iavestigation, fhe Judicial Magistrate First C tlie case to the court of se$ l^omicidal m nattire. After completion of iSfrge sheet was filed ta fhe Court of ^ass, Bilaspur, who ia tum., coiiiimtted ^sions vide order dated 07.8.1998 from where the record was rece conducted the tnal. (3) The leamed AddlJ evidence of prosecution accused u/s 313 Cr.P.C. also examined aad after h< counsel, the accused The convictk)u of fhe appfepaiit two eye-witaesses nainely ^ (P.W.3). So far as thel conceraed, leanied counsel| fact. More over, Dr. G. the postmortein has dep wound in. size of 2?? x 1/2?? there was a fracture aad ^Td^t^ Hl^'ff^^ <1^1^K ^3Tf^T3:T^!?r ved by fhe Addl. Sessions Judge, who Sessions Judge adTter recordiag fhe wifnesses, recorded the stateinent of the ^hereafter, two defence witaesses were 'aring the arguiaents of the respective appe^laat was convicted as aforeiaentioued. is based upon the testmionies of u, Bhard (P.W.l) and Ku. Parmeshwad honucidal death of tiie deceased is for the appellaat has not disputed this (P.W.10) who has conducted sed that he had found one lacerated V^nkatesh W on fhe right side of the head^ flie braia matter was also coniiag out frora the skuU. He also fctu|nd clouted blood in. the said iiijuiy. He XI-HC-78 -3'iT^^rfiFF cl^TCT^i^m^ v 3^ ?<•((<»tia'i.t, ^^^ii®,Ktdite^. ^-^. .S^:^.!1L^, NINdt sh**lcti ...----•.•*^^.,^ 200 3tiq^(N5i^tq p^i^RslN^l^ ^ further found a lacerated wol which was ia size of 2" x 1/2| this iiijuiy was also fractured| froin tiiis iajury. Thirdly, h| side of fhe right ear which bone beneatli this uijury was | clouted there. LasUy, he skuU which was ia size of 21/2| wtas fo|ind another iajur^7 on the niiddle of '•^ X 1/2?? X 1" aiid the bone beneath fhe the cause of death was due and the saiiie was hoHiicidall (4) So fai' as fhe iavolveni| ni question is concera.ed, 26.5.1998 at about 8.30 a.iBjl had gone to hand-punip for| near the Girls School m the reached at fhe haad-pumip a|id fiUiag fhe water. The accus^d <^i^te^: mwft ^F f^f <|5i^d<: ^3¥f%^^i^ ind on fhe back portion of the head, x 2" aiid fhe correspondiag bone of jaiid fhe braia inatter was commg out also found one injuiy 011 tlie back ia size of IVa" x Ya" x 1" and the ialso fi-actured aod fhe bk>od was also said injuiy was also fractur^d and ck>uted bk)od was also fouud fhere. On iateraal exaoiiaatilon, atjlon, iati|on, fhe Doctor ultimately opmed that jto iajury sustaiaed by fhe deceased in natLire. Therefore, the hoinicidal death offhe deceased is estalSUshed iii this case. ;nt of the accused appellaat m crime .W.l Ku.Bharti has stated that on ., she alongwith one Ritu aad Neetu fetchiag water. This haad-pump is rillage, At that tmie, fhe accused also many ofher women were also there was armed with Danda. He asked XI-HC-78 8V.'3H<IX w®a^i^»*nw^•A 171'' 6* ^^ ^ ^'^^ ^ ^ ^-^ ^ ^ ,w 3^?T^TfeNi c^TT31T^T^[N) h^»»i» -OJ^ •fersfl 'f( 'TRun-i Ffb-B-hiTO ^fTSW^f£^TTW ?rf?(T 3TT^T ^- Saatara Bai (deceas^d) why ia law (Bhabi), She Jstates th; which, the accused Sassaultei P.W.3 Ku. Parame^hwad s aiade by the accu^ed on 2| present at the scenej Bai why she has ^bused jhe has abused him beft)re his sister ^.t Saatra Bai has deuiefl about it, on Saiitra Bai witli tlie h^lp of Daada. |lso deposed about the ^.ssault bei&g ;|6.5,1998. She states (hat she was of occuntence hlun sayiag to him, on jwhich, abused the accuse^. The ac beat her, on fhis Sdntra Bai is Sdnt "beat ine tfyou wai3|f\ But wifh the help of Da^ida whicl cross examiaation |bLas beenj the witaesses, b^t the dej such fact on recordj witnesses caii be credibility of Uiese exaniiaation that deceased or they fherefore, it does 40t appea|r L on fhe held udr witaessej wittle ftiese were ui| <^l^fQl41^ iTTR^ff ^ffe^ Jlf^^W wwfw T^T£T?f[T?^Tb~?%3^fT3n^ 1^ T^T£.'11.% ^e, The accused has ^sked Saiitara as his sister-m-lav^ (Bhabi) was antara Bai stated fhat she had not tused said to Saatra B^i that he will itarted laughiag aud sa^d to hiai that ti|ie accused started beatijng Saiitra Bai he was carrymg. Thqagh a lengthy done, on fhese nce has not beeu abl asis of which fhe stateijnents of fhese eUable or which ma^ It has also not comj< sses were either iatertsted with fhe mimical terins with tfaat statements of to bring axiy shadow fhe e ia fhe cross fhe accused, tliey had SG|iae interest in XI-HC-78 -^if^T^rfow ?raT^1^TgCTfRF *(l*1t(1( Sft*<l<!t> 3^T ^NJ^I^, ^tH^4i<o, ^t^l^y ^j^ .4^^^,»<.41*^ti^4^- 200 WlEW^f^(rt^^) g^TWSffeiW^ -6. deposiag about fhe false iav< of fhe cnme, fherefore, on fepfli HW?ffff to<ft<Rii^i< ^;S^rWN ^lvement ofthe accused ia commission |ite basis of these t\vo witnesses, it is estabUshed that the accusejd had given repeated assaults to fhe deceased with an iatention ip cause her death aad ultmiately after receiviag the assaults, whic^i caused as inany as 4 iajuries on tlie head of the deceased, Saatr^ evidence of defence witnesi L Bai died mstaataiieously. (S) Learaed counsel for tlle appellant argues that on the basis of es namely Deoji (D.W.l) aad Kishaa Chand (D.W.2), it has comi^ on record fhat prior to the \ mcident, this accused was i|iot keepiag good mental condition aad was suffering from iasalnity. He submits that m these circiirastances, aa offence u|^s 302 IPC would not be made out aad fhe accused appeUant is entjUed to benefit ofsection 84 ofthe IPC. (6) We have examined !|the case on fhis liae also. After l|th. exammation of the entire r^cord of the sessions case, it appear to us that prior to flxl who were exammed before fljie trial Court on 22nd March, 1999 aad 31st March 1999, fhis fact tdal Court, Even fhis fact iavestigatmg agency nor it b exammation offhe defence witnesses, ^vas not brought on record before the . 1 |was not brought to the notfce of titie ^yas tded to be brought ia the cross XI^HC-78 HT*1^[T Sh*11<h 3^T ^NId^, ^Tn^^I^, f^c1l^^< ^.C.T.-A.:J.7..l^ 200 OT^Tq?ra7 (<{di^<sl^T) OT^T^lR-lich cTSTT^TI^Tsb^icb ?^cfTW^rfN'W^T ^- examdnation of the eye-witae^ses as weU as fh.e iavestigating officer, which may suggest fhat|the accused was not in a fit meutal condition on fhe date of iacideiit. Even ia fhe exaoiination of fhe accused u/s 313 Cr.P.C., it 4as not coiae froin the side of fhe acczised and uothiag has been tdal, for ftie first tiiae, fhe briag on record fhat fhe acci] condition, which fhe learaed S^ chi^td41ri ^i^^T^teT^t<Ri^i< ^3Tf^T3T1^T brought on record in fhis regard. It appears to us that after coinpl^tion of the proceediag of the entire defence has brought these two witaesses and by these two ^itaesses the defence has tried to sed was not keepiag a fit inental ssions Judge has not beUeved. We are of fhe considered opmioi]| that the said view taken by the Sessions Judge does not appea^r to be uureasonable because if the accused was suffermg from a4.y ailment of meutal retardation, it would have been brought at th^ earUer stages of todal for which the opportunities were available tc]^ tlie defence aad in. fhe facts aad Sessions Judge has rightly reje^ (7) In fhe result, we do uot] circuinstances, we hold fhat t4is ls a]a ofter ttiought defence taken by fhe accused, which cao.4ot be given importaiice aad the pted fhe saine. find aay substaace in this appeal filed by fhe appellaiit aad fhe j|udgment of conviction aiid senteuce Xi-8G,?§ ^it?r^l|^ rf?I^ Rao tl-ltj'^1 ^w^ ^i -^l^j^^, |^|t(4if, ii^!^^< ^^ ;??^?-t>'??<j?<'<^f^jT 2QQ 3l-|^l1 ^s|.<t»(''P^I^F) ?^TT§3Tg^'gT^5T ^9 doe|s awarded to the appeUaat which inay warraat iaterferenjce (8) The appeal beiag devo^ aad it is hereby disinissed. Sd/- Ag. Chief Justice %l^fo41Ti HI^<^'^te^^R^R ^^Tf^g'^T^i' s not sufiTer aiiy iUegaIity or iafirmity ce in this appeal. id of inerit, is liable to be disnussed Sd/- Sunil Kumar Sinha Judge • \ '•',•' .;'-