!W/"a ——.^'—_. ""- Kn^w^^ '^ OlS^P. R.11/91g, <;yi :^ WS:M CFoowos'ae'i'y APP£Al-OF PRISONg m^ W^} ^ourt^oP (*&ohya ^<.aw.^i^ .:-jA^OBun.-^':''.t:,,1-' Sf'S 2?WR 19% I>N® Bei.Mo— BtmS^ltrk • - -- - Hi<tl CTH-t.-Jatu^l"'' ^ No....»./.^».,./....«..,.;...,...,......,.Namei Father'sname'AA^^te.^^^^^^^^^^^^.^A Residence:,:..^^.^^^^ Age-..i^.-^^......,,..... -^...-.l^......... '•^r. SentenGedto.ST^^.^T??z?^.;.:.....;Ott,.^^ Unde^ectiQn;^^^.^^.. .^^..^y-^..^.®^^H^S£^g^ ^'i(myuy '^ It.is explairied to the prisoner thatifhe stafeSij&r;wishes to be represented bylegal, ^ractitioxier the^Apipellate pourt will'not proceed with the base for seven days -luiless sfei legaT^praotitibner^appears^If fhe legal practitipner .does not appear witliinseven ;days temaynot heard at tftt'u4£titte pri&oaer stafes that he does not wish to be repre- .seBtea^xl^al.praetitipDerth^cpurtmaypiueeedatODGewiththecaseandwil l:ot)ligeSito?giyfe.aAe^rigte;.ffoylegalpractiiiot]erwhoshouldappear. , Pa.teofApplicatidaforciQpy.ofJudgement .-. .......................... ............. Bateonwhiclicopyreceived .................... ... ...... ......................... ..;...... DateVQflwhich Appeal seat..—...;^.......;;........—......... ... ........ 'Whether the prisoner yisheSffo be represenfed or not -'Yes / No ;..-....^^^..::...;. .Y.:...::;.. ...... Name^"^^ ConfinMm'.....:....;.....L^.^fc..Jail.HT:^ No. .....-..-^L4fe&J^ated.».0...|..3<j..199^......^ 3rwarded to the CHIEP JUOIGIAL MAGISTRATE .. ........... .. .;............. -.,.„.... togatBei- which -a copy of judgement or 'order passect in the case foc favour of trans- mission to the proper Appellate Court. •-^Gf^Ti- ^'n MS- i£i^s6 . ^- •^r^^^f^lAy- SuperiDtendent .Superlntendeirt^ ^taJJaiJf.atlaipur... fM.pA... ii II Date of receipf.in..i ......... ........;........,...office. -:/ Date of teceTpt recOrdt^'accomRanyfhe. Memo ofAppeal tp;llie^Appellate court .. 3KT2:CT'^"£ ?-']-7' t^ • \ ' ' /' ^ ~- ' ~3o->i :,3.h,.* ' ' '. y ^" :Lg'! No Dated ....................199pwk^n Forwarded to the -,...,.....„-•.................... .^ ....^...............^.r$^ Da'te-ofreceifitiiiAppeUate^eourr .;.:,.'.;.;..^^1.,..:....'..^ "k ("•F.;:3E>..;(5.A) ^.,a ^" "^- !SM ! BEI:S381"'Ssl% aBi!R':iS3BlN''i~MaS ^^""'^^s.;.^.^^^' •s^ -^ww^ ^wi^. n ®n^9TtR^? ^&c..:.^...^<S ^ iswwtroaxiicb """"""""""""" fN^T"'""" '^. /200 I "ja^Bffit li'ijl^^SES^ KS^R^ ii.i!-—a sn^n ?siwHf?ti ^•'•KSS-e'WSIW.^ aDIVKIONBENCH: ^0^8L£^HRILC BHA&OO & (•tON'BLE SHRI VK SHRIVASTAVA.J J. l^-'i&B:i iS^'ifi^^l 11;":"^.•is^^^lt:^ Itl'':l^^^^al^%l BIBiBBBSII BS BB'ieSgIRSS^ish''!:' '127.02.2006 ^ Smt Savita Tiwari, counsel ^,;Crim)n<i|AppeqlNo.868/2004. ^^.&:;^s, Sflpi-'-.ftK;'Jain, counsel .foi g6(-imirial<^ppeci|No.825/98. ^|||j|^|r<||.iifii,|ficypai,i Add itipna §||A^isf|ini,ffane!lowysr for the Stat ^^^^^^:^Nf^E—:.L?^.^'/?.;:-^--'::^^\.'-.'• -. -'"'^— B'il8i^ il^Rttl&^l-'<4DOG.J. 'K'S ff |;11;; 1 Grari^dgmentdic-tated on |||S;:j||g||Crimincil.'Appeal Nfl.868/2|004 IsSBriminal Appe.alNo.825/1998 fi le( %sthe;same Jncident and relate to iNci<e being disposed of by this com( f» ' Accused/appellant fAa.dan No.825/98 questioning the legoli of conyictjon ouid order of senteili Additional Sessions Judge in.fi / : ' iearned .Second A^ciitiohal Sd: •oiilii'iili xi^fl'i" 4^S Tf^n^R ^; •SRpgit sn^i or the appellonT - Moghnu Korwa in the appellant - Madan Korwa in Pubtjc Prosecutor with Shri Akhil /resppndent. . [Dais. filed by AAoghnu Korwa and by Maddn Korwq are arising out of •he same incident; ti'ierefore, they 'non iudgment. ~ '-, • Korwa has preferred the appeol / and correctness of the Judgrnent ce dated 31.12.t997 passed by 2nd iessjons tr-icil No.149/96' whereby ssions J'udge after holdihg the dccused/appellanT guiiry for commi^ion of offeMuti uridyi;^5^lipn ^ X:-H&22 's^ -^MM^, w^sl\s. feroy STT^T VTER *<1*<MI tllHrai '8^ 200 f^i^' Sl; ..a®»!l; SS! I'FBF'3®^ ijc-fi .wg^sr 3n^n?^iiw^ftB '2- '^NwfrTWRff •? •feczt-(faregrc '^•iTpira an^i tt s fB? jg'v 302 read withSection 34 of the undergo iniprisonment for life. . Accused/appellant Moghnu No.868/2004 questionin9 the judgment of conviction and orde^ passed by .Second Additional 9f No.149/96 whereby learned Secor^ holdin9 the accused/appellant guil" Section 302 of the Indion Penal irnprisonment for life ond to pay c( •lakh), jn default of psymentof fin^ Accused Moghnu Kor'VtO^ proceedings undsr Section 299 0^ absence of the accused/uppellon produced before ths Court on 18. No.149/1996 was again taken-up 4< as stated above. Brief facts of the prosecu lodged a report (Ex.P/1) in the P^ about 3.20 arn To the effect th< Iitidion Penal Code, sentenced him to Korwa .ti;ps preferred the appeal ;ga!ity and correctness of the of sentence doted 30.09.2004 ^essio.ns Judge in Sessions t^ial d Additional Sessions Judge after |y for commission of offence under Code, sentenced him to undergo fine of Rs.1,00,000/- (ftupees one to further undergo'five years RI. was obsconding. Therefore, tf the Cr.P.C. were initiated in the Later on, he was arrested and 111.1999. Thereafter Sessions trial V. Igainst AAoghnu Korwa ans! was held engaged in agricuftural activity. ''. / .<at 1i? nr'"" ""rt invi+p-d -for meal arf •ion case are that, Jatribai (PW-1) lice Station Rajpur on 28.03.94 at |,t she is residing In Pendari and is $ulchu Korwaco.me to her residence d cortsuminq liquor'. Therefore, she [T^^f^ K XI-;iC-22 ^-si ^n4i]<rit). 's^inTTs, i?f"rrey ,ti B::sr 'iII^H^I fe?i:B3:n^T 'yn^-f ;'>!11' :K 'Ss K •^il' w^r 'VT'K Wflar^nra; "'ff't, 2UO fa^a' w^iT(<nw^f?a along with her husband Ronha taking meal and consuiTiing !iq their residence. 5he was ahei following her. jatribui and Mad<in Korwa and /Aoghnu ^orui Ronha on the ground; uccused chest dnd started assaultincj 'wfeih-wRff •?-fe!?t Tfsi^n ^ afligq sn-^t ;ent to the house of Bulchu and after i^or, in the evenin9 they stdrted fo" |,d of all, thereafter her husband was ler ';husbdnd were being followed by |a. 'When they reached near Khutapani , they stopped Ronha and acc^ised AAadan Korwa forcefully pusheci Mo9hnu Korwa jumped.and sat on his him wit'n hands and fists. Accused Madan Korwa pressed her- ht^sband, when she tried to intervene, accused MoQhnu Korwa twistei broken. Therefore, she rema a stone and assaultedon the • 'which one stroke hit near ^ other on the forehead and t] this, Madan Korwa ond Mt occurFence. Thereafter shel Sohana (PW-2), her son th<] Moghnu and Madan. After- Sunder Patet. On receiving this repi^ the crime unde/ Section 30^ for the scene of occurrenc| her left hand therefore her hand was ]ned standing. Moghnu Korwa picRed up }ace of her husband three times, out of e left eye, one above that place and lereby the face was smashed. After ghnu Korwa fied from. the sce.ne of went to her residence, and informed it his father has been murdered by that, she informed Budha Yadav and ••t, Station 1-louse Officer regis+ered reoid with Section 34 of the IPC, left after givirig notice to the Panchas, [•qt^^fiM 1 'll i.^: J'^ .''I-HC-22 sn^rsm IB:. wwiOTjsi Ji' OTJ'RgSI^f Ife ?g?. TSI 'qi<4i<-i^ dTfl'y'i!i, ferrey 3TT^?T tR% wwrr^qra; fe^y' 3II^IWIWCTf?g -^ "^t 200 VPTK^TV^if-fy^- ^3riiW3(T^I prepared Panchnama (Ex.P/3) of ^-he body of Ronha. 5HO took into possession blood stained soil, ptcjin soil o»id white stone, the weapon of offenca under Ex.P/4.- The fcloths of the deceased Vifere taken into .posgession under Ex.P/7. , Body. of Ronha was sent for Postmortem examination. to thel where &r.Pritam Ko.in (PW-j andprepared report (Ex.P/12). Community l-1ealth Centre, Rajpur, 12) conducted the . Postmort&m The stone in question i,e weapon of offence was sent for the doc-t^r's opinion and he gave his opinion under Ex.P/13. He opined thal| the presence of biood on the stone confirms that it was possible 1^o cause injuries, which was found cr~ the head of Ronha. The site plan (Ex.P/15) was prepared by the .Patwari. The iner9 intirpation (^.P/16) was given by 51-10 Rajpur cnd sita ptun Ex.P/17 was prepareji by him. J.atribai was sent for the wedical examination of her injijiries under Ex.P/19 and &r.Pritarn P.c.in examined her and prepared njury Report Ex.P/14. The articles found at. t'ne scene of oc<jurrence ware sent for sefologis'r's examination from where rep^ort was received under Ex.P/25. He opined that the stone in questj After completion of thf lon was stained with human biood. investigation, charge sheet was filed against the accused in the C^urt of Judieial Magistrate, First Class Arnbikapur who/n turn comn^itted the case to the Sessions Judge >. / [«^rt j ] @ '•i S::^'s3s ^ l^fc':.','^iSSS^M^^ K'¥:;i!BS88SKKs>? 's^ •^wMtf^'^wis, r^cittiy •w^?r TT^T K [3S!S'!»& w';,' i^B^N^ •tWBBSafw Bf w^^ri^--.---...................^ ^ fst^vi""-"----- •••••-•••••••-..... 3«^i?wiWHf5g- wrfwt?-TOCT ^ feist ^r^n ^ 3rf:tTt[ 3(1^1 from where learned Second (Adjditional Sessions Jud9e lArrbikapu!- reeeived the case on transfer fof' trial. The prosecution in order |to establish the chcrge againsl- The accused persons examined 18 w-i^-nesses. Sto.temsnts of the accused persons were recorded under ^ection 313 of the Cr.P.C. in which they denied the prosecution e^idence qppearing ago.inst them and stated thattheyare innocenta^id haye been falsely implicated inthe cnme. We have heard learned cjiunsel for the parties. The homicidul death of t|ie deceased'is not in dispute. As fards the involverpe^t of the accused persons in crirne in question.is concerned, there i^ only one eyewitness to the incident, i.e.PW-1 Jatribai, wife of t^e deceased. As fo.r as the accused Madan Korwa is concerned, in| examination in chief, she has stated ,' that he also assaulted her hu|sband. The accused persoh assaulted with stone on the head ns a r4sult of which he die.d~..When she tried to intervene. she was also asfeauited and her left hand was brc]<en. Accused Moghnu <orwa attac^ed her husband with a stone, wher'eas 'accused Madan Korwa; restro^ined hiw from proceeding further and towards the forest. In the cross Ithat her husband was attacked with Q occused persons ran away examinati^, she has stated '.. / stone byMoghnu, as o. resut o.fwhich hedied on the spot, Moghnu [•(ft&^feq »f- yy XI-HC-22 g) :it^. 'tv^i ^. ^51 "i)l<lli-1'4. 'STilWTS. 'faCTRTy 3ff^T WSf; WWW^ """"""" "'V^ 200 'fire^r' |: ; ;^]|Ht'q'I: K;;: t-iiSi?i8^ sti*iii> 'gisi sii^i ?tgiwaf?B fc +iiidiii-i 'ciT'Rff'? fs^zt <r«i^i< ^atfigiT 311^1 II liit' 'N' 'MI husbadd tHe des^rves also twisted her hond therefore, i- Korwa has not assaulted her proceeding further. The accusec^ Therefo.re, from the above eviden| evidence a9ainst Madan Korwa the conviction of Madan Korwa 34 of the IPC is not based on nn' crime in question. Therefore, the against (Aadan under Section 302/; In the circumstances, we are of fped by accused Madan Ko rwa As far as accused Moghnu categcrically stated that he atta< Iri the cross-examination of this notbeenable to elicitany circumsl ;witness:un-reliable and deceased'has stated that he w4 accused persons namely, Moghni} attacked his fdther with stone. Tj possession under Ex.P/3 and same^ PW-6 Sahabir hasjzflso stated tha1| pm Jatribai cawe to his house reg^ir'ding under untrustwc^rthy was broken, The accused AAadan I. he only restrained Ronha from Mo9hgu assaulted her husband. :£, it is evident that there is no assaulting Ronha. Assuch, ler Section 302 read with Section legal evidence, conyicting him in conviction and sentence awarded i4 of the IPC cannot be sustained. considered view that the appeal to be allowed. is concerned, PW-1 Jatribai has :ked her husboind with the stone. witness, the defence counsel has iancewhich makes evidence of this PW-2 Sohcna, son of the is informed by his mother that Korwa and Madan Korwa have ie stone in question was taken into has been proyed by PW-3 Sohan. on the fateful night at about 9-10 and 'informed that Moghnu has [^tS Sfvssf ilXI.HC-22 giSi^rl:' Is^isiitRI •sn^i-^t B !ti!j' -s^ ^qpTRTq, i?'fltelis, fei'iTry 3TT^?T ~i^ TffIfWf »lWft •^ 200 f^5Sy' sn^iwnwaroi -I murdered her husband Ronha, by lying dead on the spot. The stands corroborated by PW-9 Bi ^maternal uncle Ronha,his wife, and Jcame to the residence on the taking meal and after consuming liqi arid thereafter Madan came to hil Moghnu is attacking Ronha on which place of occurrence oind they saw^ ;M6ghnuwas not present there. Th< ^bysthe medical evidence of FW-l^ that on 29.03.94 at about 9.30 am the body of Ronha and there was ^ region on the head in the size of There was a lacerated wound in thel bone. The mandible bone was fral broken. On face and skull clotted dis-figured, the skull and the nose was pressed and flattened. eviffence tlA<0 occtision found that rib Nos.5-9 were broked ./ Th^ membrone an^ 1^ie brain were wn?iqp| •W(Mf •?'fe'aT "(fsf^TC ^sfi?n3l!?SI ^tttacking with a stone and he is of PW-1 Jatp^bai furthe" ilchu who has stated that his children of Ronha and AAoghnu •of Holi Festivoil and after i^or, left the house in the evening ijs -house and informed him that he, along with Sohan went to the that Ronha was already dead, ^ above evidence is corroborated br Pr'ito.rn Rcm who has stated |ie conducted the postmortem on lacerated wound on the frontal ^ X 2 cin deep up to the brain. size of3 X 2 cm deep up to the ifctured and two teeth were also l^lood was present. The face was bone were fractured. The lOn dissection of the chest, he The frontal bone was broken. cerated. In his opinion, cause of manUible death wqs, corria due to brain injury and the same wo.s howc^Q^fQi {, 1-H13.22 Al^ SsSKn ig®-1 : ffi'ians,^:'1; T^ •^l'lllcl'i4, afll^'is, f«(fii'yli,< 3n1?T 'V^K 'WTOT^wg?""""""""""""" """""Tr^ 200 f^Esr' jl^Bi^iaii'"; B^iNB'^^' ;MiBn'; aii^i wmw^ifei ?- CM'4l(n<4ll 1RITO^y ^ 'f^St •l.pil-^.K ^ari^an^T »; ^' c^: occLjrrence ;yewitr|es3 accuse riature. As per the Serologist repor^, possession from the place of blood. Therefore, the cornplicity of stands proved based on the e.\ by the medical evidence and also the stone in question by which the a{ fbund stained with human blood. Learned counsel for the 1+ie matter of RAM PRABHU AN^ OF MPreported in 2000 (1) C.C^ accused attacked the deceased in nothing on record to show that the with an intention to cause his death) accused doeshot trave! beyond Sec^ %t On the other hand, learnejd suppSrted the judgment of the trio^ the matter of STATE OF reported in2004 AIK SCW 24argi| jnjyrieson the vital organs of th ', the stone which was taken into was stained with human the accVSed in crime in question ^s3 evidence PW-l corroborated the circumstantial evidence that fccused assaulted on the head wos id/appellant placing reliance in THREE OTHERS VS STATE •.J.Z52 (MP) argued that the the spur of moment. There is accused assaulted the deceased Therefore, offence against the ion 304 part II of the IPC. Additional Public Prosecutor Court. While placing relio.nce in VS &HOOL SINGH ed that looking to the number of deceasd, the intei'il'ion of the RAJU.STH-AN accused was evident to cause his detth Irf order to /at s .. / • tljie argument advanced by the c.eun3el,'wc havcpcr'uacy thc rccord.—Frpmthe msdical [^[^ ^a^ iK ^IC-22 ^ "TS^'afPIRTO, dTliy'ld, (sldl^y 3^?T T3RR? ^^:';:|^^j<^',^' »ii*«irsiitn<»i "^ 200 'w' ^. fc|fc<ff" ^ •< "'^'^ anR^wt- Ste3^] ^Tqfer^li HI^* ^ feT3t <f^(^.i< ^TsiPaHsn^i ^e^idence, it isevident that skull l^one i.e.frontal region bone was '•"^^•. found fractured; The right sicle frdctured and as a result of blol (membrane we.re. found lacerated. became flattened. The face becaml and mandible we.re. found fractured. In viewof the above facts, t| Iribs from 5-9 were also found w'.of tha;>stone, the bniin and Everf the nose was pressed and e dis-figured. The bones of skull ne judgment of MP High Court is »s JldlJiitjnguishable on facts. In that ^ase, the accused persons threw' |the;stones, whereas in the presen^ case the accused attacked with ttift.stpne on tlie skull and chest, ^is a.result of which frontal and mah<Jible bones were fractured. E\| 6n two teeth were broken. Ribs C! wet^^hroken. It is true that ther^ is no direct evidence re9arding .in'^ntipn of the accused. As per the judgment of Hon'ble Apex <goHt|g^in the case of bhool Sing|i (supro), the intention can be §g|heped.from'natureof injury, th^ lll^egiitoapon^ysed in causing such in[jury which are the indicators of ^Hieififac* whether the accused caij '» wt+i.an intention of causing death (j almost all the bones of the head ar| Ribs^were fractured and the ac| Jrepe<]rtedlyontheheq<^which resi^ltad in death of the deceased. >. / part of body where it is caused, Ised the death of the deceased ir not. If we look into the facts, id mandible bone were fractured. :used attacked with the stone [•q^tfi^ .;iB: ^ / Xi-HCK22: ^'^, '"u"\^ TS;^-'.; ';..'-.' ''^'::"."''^ -^si ^wr"ra, 's^rOTS, tgwry 3ff^?r ira^? w(Twr wt<i<* 'Wi, 200 iw5^' ao^^t: iR;1B»">"S<l i sn*(rai''s({6a 311^1 ^<irere^riCT -.0- ^i^id^'i +<i^<?ii ^ 'fe'^cy ^cN^K ^aifigtTsn^i & ;adma ^ Therefore, the intention of tbe large to cause death of the dece|ased In the r'esult, •' 1. Criminal Appeal No.8; Madan Korwa succeeds and th4 Sentence irpposed on him under the IPC are set aside. He is a: 302 read with Section 34 of th' un!ess required to be detained in 2. As far as Criminbl accused/appeilant Moghnu Korw^i illegality or infirmity in the jui and sentencing the accused und^r the fine ainount of Rs.1,00,000/- Court vuhich is Too excess'iye, thj instead tliereof, we impose g fi paid, then he is directed to fui appeal is dismissed accordingly, v\ ccused/appellant appeiars to be writ ^d7- L.G. Bhaidoo Judge -. 7 '5V1998 filed by accused/appeilant same is allowed. Conviction and pection 302 reac with Section 34 of uitted of the charge under Secti'on IPC'. l-1e be set al' iiberty forth'.'vith any other case. Appeal No.86R/2004 filed by is'concerned, we do not find any l^ment of the trial Court convicting l^r Section 302 of the IPC, except imposed on fhe accused by the trial ^refore, we set aside that part only, ^ie of Rs.100/-. If the fine is not ther unciergo one wonth RI. The 'ith this modification. Sd/- V.K.Shrivastava Judge -\. -%f~ .-*4 ^TT^ '^fS^.