5 , APPEAL: OF PRISO‘NERgMsion Bench {Prirréng} No ...."$‘&9°\.5‘3>. . Name Jemaw Fathersname Qggi‘ 3%: m» QO‘ vam -e%'w 31 aarw‘v" ReSIdence @bm._ MH Age 3% q'kg" Sentenced to €13 L‘é On . r2$ \ W & Under SeCtlon 5 x ' ‘ 2 :--.: by%§ g; qxl“ 1t‘2 \ \‘& S‘YY‘ski* 'e' \V . \&"" \ \ I It is explained to the prisoner that if he states or WIShes to be represented by legal actitioner theiAppellate ("ourt will not proceed with the base for seven days unless the legal practitioner appears . If the legal practitioner does not appear within seven ‘days he may not'heard at all lfrhe prisoaer states that he does not wish to be repre- sented by legal practitioner the court may proceed at once wnh the case and wrll not be obl1ged to give a hearing to any legal practmoner who should appear A l l Date of Application for copy of Judgement Date on which copy recelved Whether the prisoner wishes to be represented or not - Yes / No 2 3 Date on which Appeal sent .. 1 1°} Cl 6 4 . R‘woVL’: Name‘QrrQm QwAm‘lm Qwm” a Confinedin $b Jail \ttgD ‘No....$§é... "Amatvté - Dated 2st.tei.\ Qst9" Cm t \o a~\ $1\\‘( togather which a copy of Judgement or order passed 1n the case for favour o trans- isslon to the proper Appellate Court. aW- $ “1 ms 3\t‘\¢x§=3d\— k Forwarded t the m1\u\ Ava w\q\ ‘ a m L \W “\eiq \Q a Daterof receipt in... office Date of receipt record to accompany the 3 Memo of Appeal to the Appellate cqp‘i No Forwarded to ‘the glam “karat” xgrt/Lgggwglg Dale of receipt in Appellate \ -3\ “ 'E tr ’ XI—HC-78 WW 200’ MW, W153 W . W.(%.;..£.°.9&/.?@E WW(W) wwwm Division Bench; Hon’bie Mr. Justihe LC. Bnagoo § Hog’ble Mr. Jusg’cg Dhirendrg Misma, gg 21 2.2007 Mr. R.K. Jain, Advocatef r the appellant. Mr. Sudhir Bajpai, Dy. G. Oral judgment dictated oh Dais. ; Per L.C. Bhadoo, J. Since the accused/appell hg couid no; be reieased frorr therefore, with the consent of appeal itself is finalry heard. This appwl is directed a WW§WW éqwm Q . for the State/respondent. ‘ainst the judgment of conviction and order of sentence dated 26.8.1 996 p ssed by the Additional Sessions Judge, Korba Sessions Trial No.316/ whereby the Additionai Sessions Judge after holding accused/appell nt Rikhiram @ Likhiram guilty fer commission of offence under S ction, 302 of the IPC. sentenced him to undergo rigorous imprisonment Case of the prosecution i brief is that on 11.10.1995 at about-5.00 p.m. when the complainant r life. al was sleeping in his house, accused came in a drunken condition, tarted beating hirp with fists. When he raised cries, his wife came and r scued him. Thereafter, the accused went to his house, started beating h‘ wife lnjorebai with fists & slaps and after .4Hd RT.O. ant was not able to furnish the bail bonds, I jail and is still incustody since 1995, counsel for me respective parties, the X1—HC—78 WW,WW,W Wm .%Q .ZcQ‘BE/Zé WW(W) WW%‘WW QSWW wwwm ’1’ ‘5 i dragging threw her on me gr und, as a result of which lnjorebai sustained iniuries and succumbed to th same. On 12.10.1 995 at about 3.00 p.m. the matter was reported in e Police Station-Korba. based on that, the First Information Report (Ex. 4) was registered for commission of offence under Section 302 of the LP. . The investigating Officer left for the place of occurrence and after givi EL: .notice (EXP/6) to the Panchas, prepared inquest (EXP/1) of the dead body of lnjorebai. Dead body of lnjorebai was sent for postmortem xamination under EXP/T to 100 Bedded Hospital, Rampur, Korba, here Dr. R.K. Divya (PW-7) conducted postmortem and prepared p stmortem report (Ex.Pf8). injuries of Vittal weie also exa‘mined by the d or and he prepared injury report (Ex.P/2). After completion of inv stigation, charge sheet was filed against the accused/appellant in the Co it of Judicial Magistrate First Class, Korba, who in tum committed the ca e to the Court of Sessions Judge, Bilaspur from where learned Addition l Sessions Judge. Korba received the case on transfer for trial. The prosecution in rder to establish the charge against the accused/appellant examine seven witnesses. Statement of the accusediappellant was record d under Section 313 of the Cr.P.C. in which he denied the material appea 'ng against him in the prosecution evidence and stated that he is innoc nt, as for the last three year his wife was suffering from epilepsy and o the fateful day on ac§ount of fit of epilepsy she fell down on the ground a d sustained injuries. P.T.O. i i V i XI-HC—78 33W,mwg,W ~ wwwm ‘$v Learned Additional 8‘ for the respective parties, aforementioned WW§WW éamm assions Judge after hearin teamed counsel convicted and sentenced the accused as W W .%1@;.%?.95¥[2Ag—{ %%_ WW(W) We have heard Ieamed counsel for the parties and perused the i material available on record. ‘ Mr. Jain, learned counsel appearing for the accused/appellant i V argued that deceased lnjorebal was the patient of epilepsy, on the fateful ck she fell down on the ground, sustained injures and there is no evide ce on record to connect the accused with the crime in question. On the other hand, l r. Sudhir Bajpai, leamed Dy. G.A. for the State/respondent supported he impugned judgment of the trial Court. PW-6 Antram, who'is yewitness of the incident, has stated that on the fateful day i.e. on 11.10. 995, he went to the house of one Shobharam to have the spanner of cycl where the accused Rikhiram was assaulting his wife. He heard that Rikh am was saying "he will murder", on which his wife was saying, "don't beat, don‘t beat”. Thereafter, the wife of Rikhiram died on the same day. ln the cross-examination of we witness the defence has not been abl day because of epileptic a to elicit any circumstance to discredit the evidence of this witness. E en PW-1 Shobharam has also stated that on the fateful day he was at is residence. Antrarqt came to his house to borrow the spanner of cycl , at that time he heard the sound of quarrel between Rikhiram and his w e. The accused was beating his wife and at P.T.O. XI-HC-78 3a W, W. , W W Waaugfpno:§x?£. 1H w WW(W) m wW ‘ WWWW E fgQ‘TW am W - Ly- a: 31%»:Wm that time she was suffering fmm fever. On the next day mcrning he came to know that wife of Rikhiram has died. These two witnesses are the ‘ independent eyewitnesses as they have no grudge or animosity against the accused. Moreover, the evidence of these witnesses further stands > corroborated by the medicai evidence of Dr. R.K. Divya (PW-7) who has l stated that on 13.10.1995 at about 10.00 a.m. he conducted postmortem on the body of deceased lniorebai and found injuries on the temporal :uregion, contusion on the ri ht hand, abrasion on the right hand and abrasion on the hip. He hasf rther stated that on dissection he found that e on the right side of temporal region and there was a compressed fra cause of death was coma an shock as a resuit of h'éad injures. In view of the above, itis established t at the accused was the author of crime in question. Learned counsel for the accused/appellant argued that the prosecution has not been abl to establish the fact that the accused had any intention to cause death f his wife lnjorebai and there is no evidence that the accused used any de dly weapon to assault his wife, as such the offence against the accused oes not travel beyond Section 304-“ of the l.P.C. On the other hand, l arned counsel for the State opposing the above submission supported he impugned judgment of the trial Court. Having heard learned counsel for the patties and perused the material available on record, it is an admitted position that as per the 'ui P.T.O. ‘ i W r j XI—HC—78 EW,W,W WW(W§%T) WW§WW i wwwm “5’- émfimm prosecution case the accused/appeHant did not use any we‘apon to assault his wife and he assauited her only with fists, as a result of which she fell i down on the ground and succumbed to the injures sustained by her. Therefore. Iooking to the manner in which the accused attacked his wife it cannot be held that the accused attacked her with an intention to cause her death. However, from the above fact it can safeiy be inferred that while assaulting the deceased and throwing her on the ground, the ¢ «accused had definite knowledge that by such conduct, he may likely to ‘ cause death of his wife. Thus, it is established that the offence against the accused/appellant does not trav l beyond Section 304-" of the I.P.O. a ln the result, the appeal artly succeeds. Conviction and sentence imposed upon the accused/app lant under Section_.302 of the IPC are set aside and instead thereof, he is onvicted under Section 3044i of the IPQ and sentenced to undergo R.‘. for ten years. lt is stated that the accused/appellant is in detentio since 12.10.1995 and as such, he has already completed the senten e imposed upon him. Therefore, the accused/appellant is directed to e set at liberty forthwith if not required in any other case. Sdl- L.c. Bhadoo Judge Sdl- a Dhjrendra Mishra Judge ' P.T.O. tv‘w “