"T;.^, <&^^ ^o)^ ^^XII-189/(Jail) , C.J.P.R. 11/94/2,000 ^- . CF0000058401 APPEAL OF PRISONEF^'yision B^ch ^n^ ^ ' ' ' ' ' ' ' . • • , a^srj'-i? ^_ . ^ •^f^'<'^"^vc;(""^v&""^'<>'r6;s< '*" •"•""• Father's name^^^..^....^.^.^.^.^..^.^.^....^~^^.....^Y.j3^..^^^^^^ Residence^^.^ .^.^^..^^. .^.^^Age ..^.^ ^..^. ...•••-.^... ....... ~ ...... - Sentencedto ^,^.^.^.^,.^.^.^.^ ..... On.....^^..^^..\^.Q.^.... ........ Under section <^..^.^.^.^.^.^..^. „....... by ^^ ••<,-^^-^ 21y ^L'^•^•Y^^-^ (^^ ^^••^:/ It is explained to the prisoner that if he states or wishes to be represented by legal ^ practitioner the Appellate Court will not proceedwiththe base for seven days unless the legal practitioner appears . If the legal practitioner does not appear within seven l^days he may not heard at all . Ifihe prisoner states that he does not wish to be repre- 'sented by legal practitioner the court may proceed at once with the case and will not be obliged to give a hearing to any legal practitioner \vho should appear . 1 2 3 4 Date ofApplication for copy of Judgemerit ... ..D-9..^ (s.\.^.^. Uate on which copyreceived ............<.. ....;..- ...V^ Y^.|.^ ^. Date on which Appeal seQt ........... .. ..................,.^>.^o><' .. Whether the prisoner wishes to be represented or &et - Yes / No >.... ...°<-..^.•^-.1..^..\^^...................... Name .^.,^^..^.^^,^.^.^,~Q...^-.^.^.^..»... in. •••(••• -•••••f^**^-^^'*^* ••••••••••••,j 2,11 -•• •—^^••^•'^* •^* •f*l^y% •^* €t* No..^.^.^ ......1..^.^^3..]|. Dated ...............<.. ., 199 ^.......^:[ ^^^. ....... •\0 Forwarded to the €»IEFJUDICIAL MAGISTRATE ^^^...^a^^.^..&^..^^vo L^o^^i^''_("'>1'<3 ^ togatherwhich a copy of judgement or order passed in the case for favoufbf^Tans- mission to the proper Appellate Court. ^c^unl - (^c^ ^\^^\^^ ^•\>Y ^J)-s^£'.\3''^V<S<2>u)\^^' -r nt .4sbpel< l.^^ilsw.^T: ^ Date of rceeipt in... ........ ... ................ omce... S.....A..^.i^J.^.f..^'^^. Date of receipt record to accompaQy the .........•..^..^^.—^ i,y-le4 ¥'i, Memo ofAppeal to ihe Appellate court No Forwarded to the Di Date 6f receipt in Appellate Court .. ©ghtoutt.9i.?4a JABALP'UR ReyNfl^&rfi^^^^ Kc^tCteA' ^W, rout^W>aIp^ ( P. T.0. ) XI-HC-22 ^~sr';:^PlM?T, ^Tit<yli<o, ^cni^y ^TH^yi^RT^ ^'^TOftS- ^..................^...,...........^ ^ ^ 'I^^T' f--^ w- ^n^T^T 'f^iw^nt^T 5h^i<^ ^f^a "\... {„ I- ^TI^T '^TTS[R ^f^a Division Bench: - Hon'ble Mr. L.C. Bhadoo and Hon'bte Mr.Dhirendra Mishra. JJ. 10-2-2006 Mr. Abhijeet Sarakar, counsel fo| CM^f<n<flr1 'HTR^ff ^ f^Tst tf^R$R '^stf^'sn^r r the appetlant. Mr. U.N.S. Deo, Additional Publ|c Prosecutor forthe State/respondent. OraJ judgment dictated on Dais. | Per Dhirendra Mishra. J: - The appellant has preferred thi^ appeal under Section 374 (2) of the Cr.P.C. as he stands convicted and Isentenced under Section 302 of the I.P.C. to undergo imprisonment for Ijlje vide the impugned judgment dated 29thJune, 1995, passed by the Sess Trial No.84/94. ^ns Judge, Rajnandgaon in Sessions younger brother of tfie appellant hi / Case ofthe prosecutiQn, in bri^f, is that the appellant and deceased Sundertal @ Radhelal are real-bropiers. Deceased Sunderlat who is ilticit relationship with wife of the appellant Jainabai and he had eloped ^ith Jaina Bai some three months prjor to the incident, and the appellant had|brought his wife only recently. There was a Panchayat convened regardin|g the above dispute and in the saSd Panchayat deceased Sunderlal had t|ndertaken that now onwards he shall not continue his relafionshipwith the| wife of ttie appeliant. On 30th May, 1994, at about 2 a.m. accused Lakhan|lal went to the house of ShiylaJ (RA/-5) and stated that he has killed Sunderl^l by axe. Thereafter, he also stated this fact to Moti, Videshram (PW-6), pular/a (PW-T^, Uderam, Jumman ete. Villagers gathered, Kotwar Heeralal w|as called and before Heeralal also the ['cit^'^R^r XI-HC-22 ~3^r ^||<41d^, ^nl^^Ko, fGi«rtl^ll< 3ni?r ^Rra? ^l^crtl 5hHich****"*'**'****"<****'** /"**^T;^ 209— '^<8T" ^TT^T^T f^rii?b 'sn^r 5^^i<=h <if^a ^ L.L.^.-^ + °hi^I<n<i)ri *4i<-i<rff ^ Fs^l <psi^i< '^'srf^waTr^T appellant confessed his guilt. All the (^ersons went to the house of Sunderlal and found Sunderlal dead lying ov^r the cot. Thereafter, viliagers took accused Lakhanlal along with the we|apon of offence axe to Police Station and first information report Ex.P-17 ws|s lodged. After registering the crime, the pnvesting officer proceed for the scene of occurrence and dyring investiga|tion, inquest report of Ex.P-11 was prepared in the presence of witnessejs. The dead body was sent for post- mortem to Community Health Centre| Pandya (PW-1) conducted post-mort^m over the dead body and submitted his report of Ex.P-1. In his report, th4 doctor found one indsed wound over left side of the scalp, one incised wo| incised wound on right side ofthe ba| that bone of the head was fracturedj was also fractured into two pieces ^ pieces. All the injuries were ante-morl shock due to excessive bleeding an| organs i.e. liver & bra.in. soil and blood stained sod were seM , Dongargaon and Dr. Rakesh Kumar jnd on right side of the neck and one sk. On internal examination, he found brain membrane torn, temporal b&ne ind 11th rib was also broken into two ;em in nature and cause ofthe death is d due to the injuries caused on main Sealed packet conteined bloo|d stained underwear was seized vide Ex.P-4. Blood stained axe wasseizeld from the accused vide Ex.P-8. Plain ed from the spot vide Ex.P-9. Btood stained bed sheet and Lungi were s^ized from the cot where the deceased was sleeping. Seized articles,soil,|dothings, axe, ete,,were sent to the Forensic Science Laboratory for cher^iical examination vide Ex.P-18. Report _-. ; of the serologist is Ex.P-19. Report o< the FSL is Ex.P-19A. [Tfr^ ^p^^ XI-HC-22 ~^s( ^\^W<A, ^^w\<o, (®(<rtl^li< 3^?r ^ra? <BII^C(11 ^h^ich._.....a?..-..<ft.:52^>..A^. ^.....^.......:......4.<...^...^-^^ ^^ST' Y .1-^ + 'sn^T'^r f^ri^^ni^T 5h^i<=h <if^a 3^T'^fTSsR: ^f^T -^ Ghi<Lit<rt<fli Trm^ff ^ 'feTst <rai<^i< ^r-sti^TH 3TT^T After recording statements of wi^iesses, charge sheet was filed in the Court of Chief Judicial Magistrate, Raj^andgaon, who in turn commJtted the case to the Sessions Judge, Rajnands|aon. Charge under Section 302 was framed against the appellant and th|e appellant abjured his guilt. The prosecution in order to establish its|case examined 12 witnesses in all. Thereafter,'statement of the accused v^as recorded under Section 313 of the Code ofCriminal Procedure in which tl1 appearing against him and stated that Ij implicated in the crime. He also st^ e appeltant denied the circumstances ie Ss innocent and he has been falsely ited that he found his wife and his deceased brother on a cot when he ^woke all of a sudden as a result of Which he lostbalance and thereafter, h^ does not know what happened. '•". . ' > Homiddal death of deceased SLtiderlal is not in dispute. Learned counsel for the appell^nt submits that from perusal of ttie evid^nce available on record it would b|e evident that the alleged offence was committed by the appellant under the appellant found his wjfe Jainabai in cc| grave and sudden provocation as the •mpromising situation with his. brother deceased as a result of which he lost fc|alanceand attacked the deceased by an axe and thus, the offence, ifany, falfs within Exception 1 to Section 300 pf the I.P.C. On the other hand, tearned Ad<<itiona( Public Prosecutor on behalf of the State/respondent supports the jud^ment of the trial Court and submite that the offence was committed with deceased was done to death by his oijvn brother while he was asteep in hjs house and therefore, the offence doesl SOOoftheJ.P.C. premeditation and planning and the not fall within Exception 1 to Section [Tit^ ^P^^ XI-HC-22 ~5^r ^i^id11), ^Til<i^(o, f®i<ni<iy _...&.:.A:5.2^/1-5: ^...^...........................y.^^-^ ^I^C'18 ^bHlcb ^- aee— •^^T' -3:IT^T'^T f^ri^ 37i^T 9h44ict> ^fia <\, t'<. ^-. f •- + 37T^T'^TTSJT'Hf^TT chl^t<rt<flrl ^l^<yiT'^ft^t iP^^K ^^-t^ ^ 3tf^FT3:n^T - We have heard tearned counsel for the parties. Dr. Rakesh Kumar Pand^ has found three incjsed injuries over On intemal examination, he has founi membrane of the brain ruptured. He was broken in two pieces and he had s Thus, from thepost-mortem report it deceased was homicidal. Mangal (PW-8) is father of a] eyewitness. He has stated in his evi< M) who has conducted ppst-mortem ;alp, neck and back of the deceased. j the bones of the head broken and has further found the temporal bone jso,found 11th rib broken in two parts. s evident that cause of death of the t 3pellant and deceased. He is the fence that on the fateful day he and Sunderlal were sleeping side by side, tfie accused assaulted Sundertal thrice by axe and thus caused his death. A|fter hearing his cries 'Oh mother', he was awakened, thereafter, he saw tljie appellant and thereafter saw the incid^nt and started weeping. He also |abused appellant Lakhanlal by calling him murderer. He has stated that th^ dispute was regarding listing of the wife of the appellant to the deceased. Defence in cross-examjnation of this witness has not been able tp eljcitani|1hing, which discredits the version of thiswjtness. We find from the perusal| of crpss-examination that not a word has been suggested on behalf ofthe ^ the deceased; was found in the compilomising sjtuation with the wife of the accused. The statementof PW-8 is cd the doctor who has performed autop^y and who has found three indsed wounds over the body of the deceas^d. The statement of this witness is ccused that on the fateful day in fact rroborated by the statement of PW-1, corroborated by Ihe statement of Shi^lal (R/V-5) who is real brother of the appellant and who has statedthat his about 2 a.m. on the fateful day and c^nfessed that he has killed Sunderial. [Tit^^fe^ brother Lakhanlal had come to him at XI-HC-22 'S^t ^Mi<n^, ^Til^^Ko, fa<ni^ll< WHC^T^rHT^ an^r xrsra? ^&A:^^^ ^ 'fq^ST' ^3^^'^T R^i<=h 'sn^r 5^^i<^ ^a + chHid^l'l iTFRTf ^ 'feT^t ^^K ^3lf^R3^?T He had also found that the Tangia, ^hich theaccused was carrying, was stated meeting of the village was stained with blood. He has furthe^ convened, Kotwar was also called and appellant had confessed that he had further stated that-he is ready to come witnessis corroborated bythe first inf< mentioned that villagers came to the and the axe, and the report was lodgec Dutarva (PW-7) has also stai personally along with the axe and h brother Sunderlal. Thus, on the basii involvement of the appellant in causing So far as the argument of lean in the presence of these persons, the assaulted Sunderial by axe and has to Pofice Station. This wrsion of this )rmation report (Ex.P-17) wherein it is :>olice Station along with the accused :ed that the accused come to him irn^ '•>s^ ad confessed that he had killed his ? of the evidehce of these witnesses, 1 the death of Sunderlal is established. fied counsel forthe appeliant that the .1 appellant committed the above offence| in a sudden and grave provocation as labout 2 a.m. he found the deceased (ig situation and therefore, the offence |n Exception 1 to Section 300 of the when, he awoke on the fateful day at and his wife Jainabai in a compromisii committed by the appellant falls with I.P.C. Learned counsel submits that) the accused in his statement under Section 313 of the Cr.P.C. has narr^ted the circumstances in which the offence was committed by the app^llant. He further submits that from perusal of defence witness Jainabai (D^V-1), wife of the appellant, it would be evident that the deceased was found i] which was seen by the appellant and ^s a result of this sudden provocation, the appellant committed the offence. n a compromising situatjon with DW-1 [Tit^.^Ps(^ XI-HC-22 ^"^ ^iFn^pr, ^T?l^j(^.'f^ii^y. 3:H^T'^T f^ri^'SiT^T ^RT^^fi^ t- ^w^ ^ITO^'g' WW^-. ^S^K / .&>.,^:57C0^ •-Y"-^ ^w- '.^5^?' 3??^!'^Tf^R ^?f^T -<£> To bring the offence within t| l.P.C. defence has to establish by| total deprivationof self-control as ^e ambit of Exception 1 to Section 300 ofthe Imaterial available on recorcj that there was fei result of some incident and as a result of whieh the offence is commjtted. Ftirther In the jnstant case, from the evidence available on record and particularlyl from the evidence of Mangal (PW-8), father of the appellant, Jt is evident that o{i the fateful day the deceased was sleeping .beside him in a separate cot when and started assaulting the deceas^d as a resultof which the deceased died. Thus, the defence of the appellar|t, which has come for the first time at the stage of statement of the accusec| control after seeing the deceased ir a result of which he committed the |Dffence, is not established. On the contrary, Qf the deceased that heshall not h appeilant is apparently after thoughf Looking to the nature: of deceased, further considering the| committed any illegality in arrivin^ death of the deceased intentionall1 partsof the deceased, as a result and the same is dismjssed. Sd/- L.C. Bhadoo Judge ^pifer^w^ ^ fe^ ij^gH ^^OT^n^i the appellant reached there armed with axe and at the defence stage that he lost his compromising situation with his wife and as jt is established thatthough the de<|;eased had iUidt relationship with the wife of the appellant prior to the incident, h|owever, after Panchayat, on the undertaking ive relationship with the wife ofthe appellant in future, the appellant started livji|ig with his wife. Therefore, defence of the' i|t and the same cannot be accepted. jnjuries present over the person of the statement of Mangal (PW-8) who is the eyewitness and statements ofwptnesses before whom the appellant has confessed his guilt, we are of tfie opinion that the Court below has not at a finding that the appellant caused the |f by blowing three fatal blows over the vital the appeal fails bejng devoid of substance SdJ- Dhirendra Mishra Judge