ak^'^0' ^f^ l^oo/ XXI-1«^(Jai1) C«J«P. R. / 9-9^ ^g^'-^f-pra^DNER No..^r^.^^/?f... N.me- - f;.^^^- Father' s Nams- -^/r/-^^-f/^ Residence^ ^^-^r^i^'i^^ ^'•NRifc^-6'* ~"^ c?('/" '•''*• "" Sent€nc€<l~to--^->^-^^^rcin^r - - - an- -/f./z^^'s ""•"' under Ssction-^^--?(7-^~>./7<»-j-.^y- - - by •^.^-^^-^^^)^- ^/'rr- /^(s-e^.-jy/ -^ 7//^_ • '". ~ 7 r»'"^7^^'!^77^tF 7 ."' * " It is'-6^)lairied-f6t'"th^ prisoner that if he"st'8f~es^he/wishes tt be repr€sented by a legal practitioner the appellate Ooyrfc •wxll nof proceed with the case for s^ven days unless the lc£al i^ractitioner app€ars earlier. If the legal practitioner does jaot apyear within seven days he may not heard at sll if the ^rxsQner states that h€ does.not ^ish to Tie representated tey legal practitioner th€ courb may proceed at once ^ith the case^ and will not be obliged to give a hearing ^to my le^at practU ^ tioner who should eppear^ 1. -^Dste ».f Applicatiou for copy'of Jud6ement^,^ ^yr^^^ r 2, Date pn which copy receivsd- - -^-^&^^- 3. Dats' on which Appe.sl sent- - v^^i-J-, •^..^O-l^ ------- ^^ Whether the prisoner wishes to be representedor not- ^^w ^ No< J^-^^-Ai - » „ -.Name- ^^^eL€&-^^^ - ^- --T con^ined in - - ^,^'y- - " -Jsll'- 7^7^-y^ - -------<'* ^o^ .--. ^ -;-f^g- -'- - Dated- ^/•^•/^.(SOT' ^-4^-^ < - - - - R?rwarde6 ^ t^^^^^^p^^:^ ^m^--f-^^^ - » to gether with s copy of jijLdgement 6r order passed in 'fhe case for favour of trc-smission to the prop^r Appellste court* Date of rcecip'fe ln- - - ^ - ^ Office- Dat€ of rGceipt of record to ac^ompany the' Memo of Appeal to th€ Appellate Court- No- Fhr'warded to the s Date, Ds^e o-f rcceipt in .^-ellQte court- -^-_...—^;—- -:. -1 -r ^ '^-^ ^ 9 XI-HC-78 W^T^Tf^TW cW3TI^?Tsh*4lch HW^IT a>H(^> 3^''^(I^H^,t9x{l<l<lc, factl«^< , c^A^o-^J-o)/ol ^200 3TT^5T ff^F(I^t5aR[ST) ^RTreK ^rf^cT 3H^T DB: HON'BIJE SHRI L.C.BHADOO AND HON'BLE SflM DIDRENDRA MISHRA. JJ Appellant Respondait CrimiitaIAppeaINo. 429/2001 Ishwardas Vtrsus Shri J.D. Bajpai, Advocate fo^ Ae appellant. Shri D.K. Gwahre, Dy. Govt. JMwcate for Ae State. Leamed coimsel for accus^d/appellant detention since 10-5-1996, ifaereby Ais appeal is likefy to take some mc|re considering baU application, appeal counsel for the State has no objectionl Heard leamed counsel for tfae I ORAL PcrL.C.Bhadoo.J ( By this appeal, accused-qip^Uait con'ectoess of the judgpient of conv^ction passed by leamed Additional Session^ whereby the leamed Additional cbi^I<rt41Ti Wl^ff ff te^ <r3i<'^j< ^3Tf^R'3Tr^T StateofCUhattisgarii submits that tto accused is in has already completed 10 years sentence and time for fiinal disposal, therefore, instead of [itsetf may be heard finaUy, to which leamed parties. JUDGMENT -12-2006) Ishwardas has questioned legality and iction ajtid order of sentence dsted 19-12-2000 Judge, Janjgir in Sessions Trial No. 325/1996 Judge afier holding accused-^ppellant P.T.O. SeNons XI-HC-78 *TmclT$t»*1|cb 7S[^wn^(, ^>^[w\<o, (si^i'yy , r^A^o.M^5/°| ^....<.:.,..»........7^200 3TT^T ?5R^ (yii^q^) ^TT^T^rf^ri^ cW3TT^T$h^i<=h ?^TW 5fff?cf W^T guilty fw conmrission of offence committmg mwder ofhis wife Koshat for life and to pay a fme of Rs. 1,0( undCTgo R.I. for six montfis. 'unishable imder Seetioa 302 of LP.C. for ^abai, sentenced him to uadergo imprisonment )0/", in defauh of payax^nt of fine, to fwther 2. Case of Ae prosecution is Koshalyabai (smce deceased) went to ifaey retumed 6-7 days prior to Ae da<< ^(^p^^p^ A^y> A^ insisted his wife to fiiAaek to Pradesh, iherefore, accused assaulted received injury <m neck. Matter was reported by P.W. 4| Shivarinarayan, oa which First fiifonnation Bivestigathig Qfi5c©rtook up mvesti^ation, ghdng notice Ex. P-8 te) PMichas prep^ured inquest ^hat accused Idiwardas al<mg with his wife lea-n Mvelihood to Andhra Prade^i wherefi-wn ofincident On Ae dato ofincicteit, acoused AndhrajPradesh but die was not rea&y to ge to Andhra deceased witfi ax^, as a r^ult of which, she While in police custody, accused g^ii where he kq)t fhe axe-weapon of off^nce, possession under Ex. P-4. Itivestigatin| ifae deceased were taken mto posse^sion Koshalyabail was admitted ia Primary was referred to District Hoq)ital, cbl^Icn^-1 ^I^QlT^te^iRl^K ^3:rf^T3TT^T Bharatdas Vaidiaaw to PoUce Station, Report Ex. P-7 was registered. left for the scaie of occiiiraice, after ; Ex. P-9 on ifae bo<fy Kodialyabai. \e memDHffMhim Ex. P-^ regardteg fhe place m piirsumce to tfaat, axe was taken into ; Officer prepared sfte pto Ex. P-5, ctoAes of under Ex. P-6. After receiving injiay, pheaMi Centre, Shivarinarayan from where dte whcre she received tteattnCTtt, however Bil^spur P.T.O. XI-HC-78 HI*1CTt Sh*11<t» 'Sv^ '^ww^,Q^\w\e, (^<ni<iy , c^ A' ^o. s^6?/o| <>^ 200 WM^^ W^T^rf^TRF cW3TT^STsb^i^h 5<WI^ ^rfScT 3T^?T she succumbed to injuries on 18-5-19ip6 in (he hospital. Post mortem was conducted add by Dr. R.K. Venna P.W, 14, who pret>ared post fhat cause ofdeafh was hemonliage After usual investigation, charge shee^ First Class, Janjgir, who in tum comi(ritted jfrom where leamed AdditionalSessiobs for tdal. 3. Jn order to establish fhe char^, Statement of accused was recorded ui^der the mcrmiinatmg material aiyearirig Additiooal Sessions Jwlge after convtcted aad sentenced the accused a^ 4. We have heard Shri J.D. Bajp^i, and Shri AIdul Mishra, Panel Lawyer 5. Shri Bajpai has not <Usputed ftat, Dr. R.K. Venna P.W. 14 has oonducted post mortem on tfae body stitched wowid on neck near mandibfe mortem in nature; fhe injury was Gbi^Icn41^ ^i^cnT^te^i'<f^<^i< ^3Tf^T3T^!?T mortem rq>ort Ex. P-36. He opmed shock du^ to sitigle fatal wound oa tiie neck. was filed in the Court of Judicial Magistrate Ihe case to tfie Sessions Judge, Bitespur Judge^ Janjgir rweived fhe oase on ttatisfer lar^, prwecution exammed in all 18 wilnesstKS. Section 313 ofCr.P.C. in which he denied |igamst hua in prosecution evidence. Leamed heijring leamed counset for respectwe parties, aforementioned. T^ coimsel <m behatfoftfie accused/appellant 4>nbehaIfoffheState. |homicidal death of Koahalyabai. Apart firom ^tated in his evidence tfiat on 18-5-1996 he |of Koshalyabai and noticed tfaat fhere was a bone, ju^ilar vein was cixt which was ante [fatal and Koshalyabai dfed on accoimt of P.T.O. XI-HC-78 +11*1^11 a»*ii<t» 3^T^Ni<n^, ^Tfl^i^(o, f®i<nwy , r^A.^o.^2..5/o| ^'200 311^1 ^5|cb (^l w^T^rf^rNF crsrr^n^Tsb^ich ^— !^c<TTW^rf?cT3TT^T hemorrhage and shock due to single ffftal woimd nature. Therefore, in view of medicat deceased before P.W. 4 Bharatdas, P.W. 13 N. L. Dhradahre, it is nature. ct)i^?^41<i WT^fy ^' te^t <Ri<^i< ^3Tf^T3TT^T on tfae neck, death was hoxnioNal in evidence md oral dyiag declaratioii made by .W. 5 Bhagwaadas sod favestigatitig QflBcer estabtshed fhat deafh ofdeceased was hcmicidal in 6. As fm- as involvement of ac4used ia crime in question is conc^aed. Shri Bajpai has not di^uted tfais fact alsc). P.W. 4 Bharatdas who is tootfaer of accused ^f^. . has stated Ihat on ftie fatefal day. ^wvaA was sleeping along with his yoimger hrother Santoshdas in a room whereas When his father retumed to house af up, he saw ifaat his sister-in-law was disclosed that accused has assaulted declaration has been corroborated by which was foimd on tfae neck of tfie view of tfie above evidence; mvolv< established. deceased Koshalyabai was sitting in veraadah. CT takiaig bath, he woke him up. Afiler waking ying injured in a pool ofblooA on ewpwy she her with ass on her iieck. Above oral dying FadierofaccusedP.W. 5 Bhagwandas. P.W. 13 N.L. Dhratlahre has also stated tfaat d^ceased has made oral dying declaration bdfore him. Thus from oral dying d€clarati<4it is cstablished Ifaat ifae accused assaulted fke deceased witfi axe. moreover the a|xe-weapon of offence was recovered at tfae instance of accused-aad Dr. R.K. Veijnaa has stated fhat it fe possibte to cause mjury ^eceased by the axe in questimi. Therefore^ m ^nent of fhe accused m crime ia questioa is P.T.O. B? XI-HC-78 3TI^T ^RT f<4J<^ ^T Sh*T \-y +11+1(11 Sh+lich 73( •^WW^ W^W[<o, (sfdlti^ C..{\. ^o. K^/o| - ^ 200 g) ![?TM3l<h (y^q^isT) ?^<nW ^cT ^TI^T 43 t&e 7. Shri BaJpai suhmitted fhat Andhra Pradesh 7-8 days prior to accused was insistmg the (tecease<|l Ptadesh to eam livelihood, wMch altercation took place between the intention to kill, assaulted the ififlicted <m 7-5-1996 whereas thereby after 11 days offhe date ofi4cident, not iravel beyond Section 304 part H|ofI.P.C. ^fras Wo dece4sed, KosRlialyabai cNe 9. Having heard leamed couns|el facts and circiunstances of fhe accompany the accused to Andhra| UveUhood, which iofmiated ihe premeditation in a fit of angw, moreover, the deceased died after safety be inferred tfaat Ae accused manner in which he assaulted the hb cbi^fo41'i WT^rf ^* te^t <Ri<-<i< ^3Tf^T3TT^T Ae deceased and Ihe accused retuerod from date rf mcident and on Ae date of incitteat tihM she should acconqpany hina to Atidhra refased by &e deceased md on diat some and in a fit of miger, A@ accused wifhoiit aay which proved fataL Morwver, mjury was siiccumbed to injuries on 18-5-1996 as such oflfence against the accused does 8. On the other hand, teamed (loimsel for tiie State supportod the judyxiesst of thetrialCourt. fw respective parties, having regard to the in which whai tfae deceased refased to IPradesh where he wmted to go back to eiffn laccused aad all of a sudden widiout my picked \y axe aad assaulted Ifae deeeased, [1 days. ifaerefore, m ifae oirciamstmceSy it can s|s8a«ittedfhe deoeased wiA Imowledge tiiat fhe defceased, he may lifcely cause death, but iiKention P.T.O. XI-HC-78 W^T^T^ich cW3TT^rT$h^i<+) ^ ^A-^I v/. ^ 3^ ^TPTR'PT, ^Tn<HII(o, Rtcnwy , ^^-^O.M^^/OI irTOwgw^******^^********** ^[ 200 3ii^yi Mitti ('ic't'i<si<<I2:T) ^cTTatR: ^T 3TI^T to cause death camiot be iirferred. 'yherrfore. offeitce against the accused does not irayel beyond Section 304-H ofLP.O. succ^eds 10. In fhe result, ifae appeal accusedunder Section 302 ofLP.C. oflfence punishable undear Section lOyears. x^eds. Conviction and sentCTice imposed iipon fhe |are set aside, instead tfaereof he is convicted for 3(|4-II ofI.P.C. and sentenced to undergo RJ. for 11. It is stated Aat accused is| already completed 10 years sentenc^ ofher case, he te set at Uberty forfhw|i Sd/- L.C. Bhadoo Judge <sbi<M?<n<{ITi ^i^^T^teI:^'<Ri<-<i< ^3?f^T3TT^T in detention smce 10-5-1996, diereby he has ?. As such. if fhe accused is not reqiuired in any ilh. Sd/- Dhirendra Mishra Judge P.T.O. />\.