'^:;:-^3 CF0000061478 (^^ ^•fe- 1'y' •^.... -.- L^. ^i. '^ ,.~^!^ .c^ ~^^T<kt©< ^~es3-)^^ APPEAL PplSONER . """• \ -".<..,^ No.__y^_ Father's Name "'C^iI^^S Name_~]^^<_1'^''(^ ~^i^_^'S_ » »^^ . Rcsident3ST^ < ^/u^s.T v J' s- ^\^\\ - "<^~;^%T^\\et Age. 35" . _„_ Scotencedto ''^5ftTp)'~~'"^'\<Tc^|^ on ^^'q" Under Section ^ol 2-: f - C v by. Vf^T^- ^\3~< rT^2^i^M- It is explained to tbe prisoner that if he states orwishes to be represented by-a legal practitioner the Appellate Court wiil not proceed withthe base for s^even days unless the legal practitioner appears If the legal practitioner does not appear within seven days he may be heard at all if legal practitioner the court g^&y proceed at once with the case and will not be^ any legal pr^ctitioner who should appear. ^?g8crf ^ r' \\^ ^. tbate of application fbr copy of Judgement :• ^ 2. Date of which copy received :- 2-^'. cf< T ^ | •^||li'Kl(.N«a^ih£ii*-«, 7^ ? 3< Date on which appeal sent :- yi^-^ j & 4. Whether the prisoner wished to be represented or not :- ^-. •^^^i^BMP^lS^^^?-^ Yes / ^or- t-w No., y-^7 _Name 'yT^P^-' (^ •^^H^^ ^ -^^n^^ Continued in ^ ^ c^ Jail o No. A{>1 I Dated ^-^-/fo/f^ r^K "^oTr' 6:^T^^t3'c ~' ^_ . ^ r^,_ ,^,,^. Forwarded to the CHIEF JUDICIAL MAGISTRATE WW3,C* ^egether with a copy of Judgement or order passed in t^e case for favour of transmission to the prcper Applleate Court 06 Superinten^|t-rt|k^»iN^ltt. / Sub-Jait ^- WI^WT'? <a Date of rcceipt in C. J. M. Office. /4 • / f> Date of receipt of record to accompany. Memo of Appeal of the Appellate Court* Vo.^^Zi.Sl^-.._ dated _,M'KZ'.^2- NA^— Forwaided to the_M/S'^L-^^^i&^A- .3^^ ^- '•'J'^'^—-.^. A' ft. MAOtSfRATE. «si.MteJS^&SRl,^..-^ ^^ 5&U 4f receipt in AgptieatS Court_^ v^ ^ .^^.-.^.^^ XI-HC-22 STT^T^T 'f^ri^wl^T ^^ich'^f^a ,^^ ^TTqT^^ ^lta?TS, 1^T9y 3?TiOT ^IF^ ^^^......;.Q.A..M.,.^ ?J _280^ •^^r' ^TI^T '^TT^R: "^^ DIVISIONBENCH HON'BLESHRlT.C.BHADOO. & HON'BLE SHRI DHIRENDRA Appellant Criminal Appjeal No. 1282 of 1997. Sanat(-am @ Santram Respondent Vs. State Smt. Kiran Jain, learned Shri U.N.S.Deo, learned G for the Stete/respondent. cojunsel for the appellant. 1 A. with Shri AkhilMishra, learnedl ORAL (Deliveredo PerL.C.Bhadoo. J By this appeal through Si the accused/appellant has conviction and sentence d; Sessions Judge, Sessions 562/1993 whereby the holding the accused/appel of murder he convicted Code and sentenced to un' 2. The case of the prosecuti Dehati report (Ex.P/1) to ^n^fepft:T "Rpraf ^ ft^ <[^^.K '^^I^R^TT^T 41SHRA.J •fM.P. IjUDGMENT 05lnJanuary2p06) Iperintendent of Central Jail, Jagjdalpur, questioned the legality of judgr^ent of |ited 25.09.1996 passed by l«Ad,fclitional DivJsiQn, Bastar in Sessions Ttial No. le^rned Additional Sessions Judsje after lljant guilty for the commission of joffence under section 302 of the Indiaih Penal (ergo imprisbnment for life. hinh >h in bnef is that PW-1 Chamrura;m gave $tation House Officer of PolicejStation [Tft^ P.L. XI-HC-22 3'n^i'^T ^J.ch <3T^T $^^i^ ^f^d ^TR^I 9S~^ ^ffqT^P?, ^^Tt^, l^iray wi^r 'q^^ ,^^.....M.:.&..^^ "^^?- -269--- ^TI^T'^fT^T ^f?H --2.- that Kondagaon to the effect p.m. when he was stanc|i Gond was also standing | came carrying a spade in| neck with it as a result of and started writhing in pai( Vimlabai (P.W. 5),Chhot^ Surju.As a result of the spontaneously and blood this report S.H.O. Subhas^ theFirst left for the scene of occui P-2) ofthe boclyof KanH^ weapon of offence under| and lungi of accused un^ possession the blood stai< of occurrence. The site prepared by the Patwari. mortem to the Primary H< Mahajan (P.W.8) conduct^d and prepared he has opined thatthe inju Kanhaiya, could be completion of the investig^ti accused/appellant in the Jagdalpur who in tum '^qfepftsT 'RP^ ^ f^Tst <f^l<^K '^3?ri^m^^i on 29.09.1993 ataboutS.SOito 3.45 ing near his chat troltey and Kanhaiya near his trolley, at that time Sanatram his hand and attacked Kanhaiya on his which Kanahiya fell down on the earth i. The inddent was witnessed by his wife vendor Ihe died slal (P.W. 9), one Lalu and Te^ injuries sustained by Kanhaiya, ^tarted oozing out ofthe Injury. B^sed on Chand Choudhary (P.W.10) registered Information Repott (Ex P-16) and took up the investigation, 1-ence and prepared the Panchnama (Ex |iya. He took into possession the spade, |Ex P-3 and also the blood stained shirt •"r pl^in ler Ex P-4. Under Ex P-5 he took ipto led earth and plain earth Trom trie place of place of occurrence (Ex. Ff-6) was Fhe body of Kanhaiya was sent •alth Centre, Kondagaori where for ^ost Dr. S.K. post mortem on the body of KJanahiya post mortem| report (Ex P-9). In his opinjon (^x. P-14) injuries which were found on the |body of caujsed by the spade in questio^i. After investig^tion charge sheet was filed ag^inst the )ourt of Judicia! Magistrate Fir^t Class, cortimitted the case to the Sessions Judge, [^t^ ^lp^^ XI-HC-22 sn^i'^T f<"li<=h 3TI^f[ $h^ic^ ^ilia ^qr ^pn^i, Www, ^ray 3ff^r "^^ ..^.:..A'-...^.-...i^'2- ^&f ^TO^^^RT^ •i3R?<r ^hl^?<rt41't 'RTR^Tf'? 'f^st if^l^K i?3tiF^R3TT^f Jagdalpur from where the |11 Additional Sessions Judge, Jagdalpur, received the case on transf|er fortrial. j The prosecution in ord^r to prove the charge against the accused/appellant examih^d 10 witnesses. The statementi of the accused was reeorded unfler section 313 of the Code of Griminal procedure by the learned|^dditional Sessions Judge in wl^ich the accused denied the prosej and stated that on accounl the evidence against him i jmplicated in the above c|'ime. The learned Additional S^ssions Judge after hearing the ^ Prosecutor and learned! convicted and sentenced paragraph-1 of this judgme] We have heard Smt. accused/appellant and Mr.| Mishra leamed Panel Lawy|er cution evidence appearing agai^ist him of animosity the witnesses hav^ given nd he is innocent and has beeri falsely rguments of learned Additional counsel for the accused/appellant ;he accused/appellant as menti^ned in ht. Public ^iran Jain learned counsel IU.N.S. Deo, learned G.A. and IV on behalf of the State. jor the flr. Akhil Smt. Kiran Jain, learned c^unsel for the accused/appellant[did not dispute thedeath of Kanajiiya as homicjdal in nature. Ap^rt from that the eyidence of Di|. S.K. Mahajan who condud;ed the postmortem on the body of Kanahiya is that thedeath of K^nahiya was hbmicidal and the c^use of death was excessive bleedjng, from the evidence of eye^tnesses PW-1 Chamruram and PW-5 Vimla Bai it is established tfiatthe death of Kanhaiya was hpmicidal in nature. [^^<a^ XI-HC-22 • •STI^T'^T f^ri^^n^T. s^^i^ ^f^a 6. 8. ^^r^fRRn^. ^TtTWT^, t^TR^y •. _ 3Tit?T 'q^? ^"•••••^••A^^?-^ftLe- 'l^^?""""'""""'" WH^iT^^g^ 3?i^T'^TT^R: ^rfirr -H- cbNfa^ll TTR^ff'? fe^ ^f^^R '^a^ri^T^iT^T As far as the involvement of ^he accused/appellant Sn commiitting the murder of Kanahiya is c|oncemed, learned counsel fori the i accused/appellant argued tha1| PW-9 Chhotelal has turnecJ h^stile and he has not supported th Chamru and RAf-5 Vimlabaj their business and they saw t|iat the accused Sanatram atta^ked with the spade on the neck o\ found on the neck of Kanahiy^, therefore, they had not witnessed the crime. In fect Kanahiya re that the prosecution has not t and even the report of the F^ been submitted. On the other hand, Mr. Mishrsl GA supported the judg^ment o| e prosecution case whereas Pytf-1 lave stated that they were bu^y in Kanahiya. However, no injury [was seived six injuries. She also argued ^een able to prove the motive ^s to why the accused without any r|iyme and reason attacked Kana|iiya >rensic Science Laboratory has| , leamed P.L. and Mr. Deo, leacned thetrialCourt. In orderto appreciate the argi^ments advanced by learned Goy|nsel for acGUsed/appellante we hav^ perused the evidence availabl^ on record. It is true that the prose^ution has not adduced any evid^nce regarding the motive. The law |is welt settled ori the point that v^hen there is a cogent evidence i|egarding commission of the cr|me, absence of motive is not fatel <o the prosecution. We are fortlfi^d ourview bythejudgmentofth^ Hon'ble ApexCourtdelivered JH matter of Bikau Pandev and <1 AIR 2004 Supreme Court judgment the Hon'ble Apex in ithe thers Vs. State of Bihar reported in ^aid the 997. In paragraph 13 of the Sourt has observed that when [Tft^ ^Ra^ not XI-HC-22 -5^r ^TRM^, mfiwre, f^rRTy 2^ SRT^Y^T f^ri^w^ $t)^i<=h ^f^a WH^T^^T^ a^r ^^ ^•••-^-A-^" '^^T' ^TT^I'^RHSH'Hf^T -$~~- cr>i^<rs<4l'{ 1RTR^{ ^ t^t <^i^i< ^3ti^P:T3^I factual position as highlighted b' even the absence of motiveas consequence and pales into in] establishes the crime. accused/appellant that in fac| rthe eye-witnesses is considerejd, alleged js accepted that is of no significance when direct evidence Now coming to fhe arguments a^lvanced by tearned counsel for the PW-1 Chamruram and PW-5 Vimlabai had not witnessed tl|ie crime, PW-1 Chamruram h?s steted that in the mpnth of Sep1|ember 1993 he was standing n^ar his Chat trolley and atthat time ^ne accused came cartying a sp^de in his hand. Kanahiya, was stanjding near his chat trblley, accused attacked on his neck as a resultjofwhich Kanahiya fell down on ^h$ ground. He saw the accused att^ also witnessed the crime, report) cross examination he has stat^ Chat trolley and some persons v^) supplying Chat to the customer] saw that Kanahiya had fell dowtj icking Kanahiya, his wife Vimla Bai Ex.P-1 bears his signature. In the d that he was standing near jhis ere atso standing there, when after s he tumed towards Kanahiya]he on th^ ground and there was tiiue and cry. Peopte were saying th^t Kanahiya has died.PW-5 Viijnla Bai has also stated that shejwas busy in her business ^ind Kanahiya was standing near th^ Chat trolley, she saw that at l^iat time the accused dame with a ^pade and attacked on the necl^ of Kanahjya with the spade. She hjas further stated that shesaw qnly once the accused attackirig the|deceased, the deceased fell dc^wn and blood started oozing out an|d he died spontaneously. She ^ias stated that the accused was roatning there carrying the spade in( his hand. In cross examination al^o she has clearty stated thatjthe pft^l ^fo^ ^^- XI-HC-22 -^E? ^SFTRT^, ^^ff?T^, t^TOy 3ff^T,.'q^^ • .. ' ,;........C^..^.-..(iV«...i<u^?'?2oo— WHC?¥T%W^ •f^s?' 3TI^T^T R^Jch ^li^T '^~RW^?f^?T 3T[^I ^<TT^R ^H —C.—1 ^Prf^^ "RP^ "^ 1^t TfW^R i?3Rrf^R3^[ 10. incident took place near the Ch|at trolley. She has statedthat it is incorrect to say that she saw oi|ily Kanahiya lying dead and in fact she witnessed the crime eve customers but it is not like that is frue that these witnesses ha< Kanahiya with the spade on incised wounds which were on bone, frontal bbne, leftpalm, rig i though she was attending ttie she had not witnessed the crime. It 1 stated that the accused attack^d his neck. In fact as per V^e postmortem report deceased ^anahiya received as many as £(ix right side of occipital bone, parietal itear and on the rightpatella. If we look into the postmort^m report and evjdence of the^e witnesses, there is no material |discrepancy in the ocular evidenbe and medical evidence becau^e the witnesses witnessed t(ie accused attacking with the sp^de. It cannot be said that the^e witnesses had notwitnessed th|e crime because the neck and the parietal region are the places v^hich are very dose to each other, therefore when the witnesses vilitnessed the crime from a distanice they have stated that the accusjed attacked Kanahiya on his netfck. The evidence of these witnes^es regarding invoh/ement of the accused in the crime in questior^ stands further corroborated by t(ie fact that First Information Repc|rt was lodged promptly in whcihj has been cleariy mentioned th^ spade. Even P.W. 2 Mehattar| that on the fateful day at about it accused attacked Kanhaiya w|th am, th^ village Kotwar has stat^d .00 p.m. the accused was roaming at the bus stand of village-Lanjo|da carrying a spade in his hand. it In the cross examination of para^raph 4 this eyewitness has sta^ed that the accused was carryin|g spade in his hand which w|as [Tit^ '^jfef^ •""f.;—i' '.XI-HC-22 'B"^ ';::qwi^^, ''^ft?pT?, l^ar^y an^r XR"^ ^.,....^:.^a.-i^^, 'I^^T"" WH<^IT^ffll<=h ;00 3Tr^T^T 1^ri^ '3Tlt^T 5^^ic^ <4f^^ 3TI^T'^H^R: ^1t?T —^- 11. 12. •^/ ^ <' snatehed by the police ofRcer. elicit anything in the cross exatnination make the evidence of these independent witnesses. Neithjer deceased nor they had any| therefore there was no reason lor accused in a false case. of these two witnesses to w|tnesses unreliable. They are the they were interested in the animosity against the accus^d, (or these witnesses to implicate tlrie Iri view of the above discussiont that the finding of the trial C^urt accused in the crime in questior| do not fmdany illegality or infirhfiity questjon of non-production of F4>r is concerned, looking to the ev| the report of the Forensic S|si produced, the same does not affect that isan extra circumstance tol the prosecution case is evidence and if any Gircumstant|al that is not going to affect the pro^ecution In view of the foregoing, we d< The appeal being devoid of mei is hereby dismissed. Sd/.. ; L.C, Bhadoo Judge ''^F?feF7h ^IHdl* ^ 'feTst ii^^l^ ^3??f^H3Tr^T The defence has not been able to i, we are of the considered opini^n regarding involvement of the is based on legal evidence and ^e in this finding. As far as tfie rensic Scien.ee Laboratory's report idence available on record even! if [sience Laboratory has not be^n ffectttie prosecution casebecau^e Isupport the prosecution case wh^n established on the basis of the ocu evidence has riot been producted case. lar not find any merit inthis appeial. its deserves to be dismissed and it Sd/- i Dhirendra Mis^ra Judge | [xfr^ ^ipsi^