,p, A'^~.H-"2> vm^ Na_2^i CF0000059813 APPEAL PRISON6R K—i: '^J^PT'/ Name_ l^^(fc^ ^TTN^. ^^37 -^rs ® Fathcr's Name_JlM2dlI Age _^^^C1 Scntenced to_ Under Section <SQ^^ Resident tJT*,^%.i.^TW^'^W-^f^ ^'^€^{ -on, •<%^/^@- bytW^f^^/J^W^ j^TCCf^^ "T2r\ It is explained to the prisoner that if he statesor wishes to be represented by a legal practitioner the Appellate Court will not proceed with the base for seven days unless the legal practitibner appears If tbe legal practitioner does not ^gear within seven days he may be beard at allif legal practitionerthie court n%|procee<l at once with the case and will not be obliged togivea bearin^ to any legal practitioner who should appear. 1. Date of application for copy of Judgement :- 2. Date of which copy received :- ^A^^3 ^ 3, Date on which appeal sent :- ' / f: 4. Whether the prisoaer wished to be represented or not :- ^ ^ Yesf No- >^rw^ ^^^i^-s^ ' No. S^S Conjdnwd in ^y .Name ~V^W -^- Jaiiyf5>^(^'^^" NO^^J^<@^-7g Dated ^^i Forwarded to the CHIEF JUDICIAL MAGISTRATBJ^I^^?? <<^7? ^k^?, TT^-~^~^^T ' tegether with a copy of Judgement or order passejl m|thecase for favour of tnsmission to the proper Applleate Court Syperintenl listt. / Sub-Jail. Date of rcceipt in C. J.M. Office. 7'-^^?-S? Date of rcceipt of record to accompany. Memo of Appeal of the Appellate Court. No.,_Ai]?_ dated_i^_^lL- :'- Porwaided to the_?^^;T ^T ;^r<^'^^ U)^ ^<^^ y f'AU \/^ •^-0®0- O. ft. MAGlS%All'BJ:±LW2! ftate §freceipi in A^plieate Court, r'- X1-HC-7S W^T^rf^TT^ cTSTT 3TI^T $F?TW ^:: *<l+ldl Sb+lich 3^ct^41<41d4, ^Ti1^4l<S, Ric11<:1^< ,Cf:.^..^^?S.^ 200 3T^Tq?Tg7(^3^T) ^cTT^H: ^rfN'W^T Divisjon Benehs - Hon'We. Mr. L.C. Bhodoo and Hon'bie Mr. V.K. Shrjvastova, State/res^ondent 14.9.2006 Mr. R.K. Jdn, Advocate for| Mr. U.N.S. Deo, Additional ©ovt.Advocate for the Ora! judament dictQted on Per L.C. Bhodoo. J:- This appeQJ i^ directed agai sentence dated 22nd Juiy, 1998 S.T. 'No. 220/97, whereby leQ^ accused/appeliant guilty for I,P.C. for comniittjng murder of h| undergo imprjsonment for iife. The prosecutipn case, in br 7.00 p.m. accused/appelbnt Poy<2?^i the stone, who was cousin accused/appeiicnt came to AAadvi confes^ion before him that in the of Jhimtu by ottacking him with took him to Bhursu (PW-3) confe^lon and thereaft^r Sukda who gave merg intjmation (Ex.P-1) 2) wos registered for commis5ion ^heappeilGnt. )ubiic Prosecutor* with Mr. &.K. ^waire, Dy. befor^^hom <=hi^F<ri41^ <-ii^<nT^'tel:^'<Ri^i< ^3Tf^TW^T ^Qi^ i^st the Jud9ment of conviction <& order of pa^sed by Jearned Spscial Jud9€,J^dafpur in <ned Spedal Judge after hoiding the comrhi^ion of offence under Section 302 of i|s cousin nameiy Jhjmtu, sentenced him to ^ief, is thot on 16th March, 1997 ct about loyci??li Somdu ossauited deceased Jhimtu with \f the accused, and thereafter, the Sukda (PW-4) and made extra Judicia! 4Aichnaor market he hcs committed murder ^tone on his head. Madvi SukdG (PW-4) abo the occused made extrajudicia! linformed Poyami Mudo, ^on of decea^d, 117.3.1997 cnd bosed on that F.I.R. (Ex.P- fcf offence undep S^tinn 30? nf thft TPC. oh nk P.T.O. XI-HC-78 W^T ^T R4i<=h (TSTTSn^TsRlTW i «-n*i<'n sbHich ^^ ^NM^, ^Tll^^l^, T^<ni<1^< ^^...A^;J.^.. H^ 200 3TI^ ^W (yti^q^) ?^TW: ^cT 3TI^T flor the Jhe Investigating Officer ieft notice to the PQnchas prepared decea^ed. Dead body of deceos^d the Primary Heaith Centre, conducted the post mortem exarr|i (Ex.P-l). The doctor noticed foui|1 that decth was homiddal in investigation, whiie in poiice cu\ (Ex.P-5)Qnci in pursuonce of thatj po^ses^ion ynder Ex.P-6 and t} examincstion. After completion of USUGIJ the accu^ed/appeiiant in the M^istrate, Jagdalpur, who in Judge, Jagdalpur, from where case on transfcr for tria!. Tbe prosecution in ord| accused/appelhnt exGmined 6 w| accus€d7appeiiant was recorded) denied the materia! Qppearin9 ir| stated that he is innocent and ha^ Learned Special Jud9e, Additionai Pubjic Prosecutor fol accused, convicted and sentence<| in ^wa l of this Judg^ent. cbl^f^l41^ HF^fff fe^ <Rl<-dl< ^3Tf^T^TT^T the piace of occurrence and after giving Panchanama (Ex.P-3) of the dead body of w<ss sent for postmortem examination to Loh<2^di-9unda, where Dr. Virendra Singh (PW-6) ination ond prepared the postmortem report injuries on the head of deceased and opined ^ature and due to head injuries. Durina rtody occused/appeiiQnt 9ave memorandum |the s+one, ^eapon of offence was taken into ic ^ame wa^ sent to th@ doctor for jts investigatlon, chcirQe sheet was filed Q9alnst Oourt of iearned Additiona! Chief Judicial tilrn commltted th& case to learned Sessions ie^irned Specla! Jud9e, Jagdalpur received the sr to e^tablish the char9€ a9dnst the [tnesses. On the other hand, statsment of under Section 313 of Cr.P.C. in which he the pro^ecution evidence G9GJhst him ond been falseiy implicated in the crime. [after heQrinq the ar9uments of learned the Stcte and learned counsei for the the accused/appeilant herein as mentioned P.T.O. XI-HC-78 +ii^c<ii a^ii'm T5ET ^HM<4, ^Tfl^4!?, ^dl^y ^^M^^^^200 ^TT^T q^7 (^3^T) OT^fT ^T RpTT^ cT8TT^n^T$b^ich y - £. ^RTT^K ^rfecT 3TI^T We have heard Mr- Jain, Public Prosecytor with Mr. ©walre, Homicida! death of Jhimtu for the Qccused/appejiant. Apar cbi^Id41^ wraf ^* fe^ <Ri^i< ^3Tf^T3T1^T ^dv. for the appeilont ond Mr. &eo, Addl. |Dy. Q.A. for the Stote. |hQS not been disputed by Jearned coun^ei from that, from the evidence of Madyi Sukda (PW-4) ^ Bhursu (PW-3) tefore whom the accused/appeilant mQde extra judida! confession that h| cttacking him with the stone anc^ Vlrendra Singh (PW-6)in which he wounds on the head of deceased yyhich was the cause for death of cj s has committed murder of Jhimtu by also from the medicai evidence of Dr. IhdS stated that he noticed four iacerated |and the skui! bone was found fractured, lecea^ed Jhimtu, it is estabiished that th@ death of Jhimtu was homicidal. M far as invoivement of ^^cused/appeiiant in commi^sion of crime under Section 302 of IPC is concer|ied, MQdvi Sukda (PW-4) has categoricaily stated that he was at the re^iderl extra JudicJd confession before committed murdert of Jhimtu by Qt^ (PW-3) has also stated that the| before him that he hos murdered J( accused made extro Judiciai confes^ of thesa three witne^ses, the d^ circumstance, which moke$ the untrustworthy or unreliQbie. Thetj the accussd/<2ppeiJGnt in commisslo ce/ accused came to his house and made him that in AAichnaar market he has |acking on his head with the stone. Bhursu accused made ©xtraJudiciai confe^sion himtu. PVV-2 Samaru has also ^tated that tion before him. In the cross-examination ^fence has not been oble to eiicit any evidence of these three witnesses tefore, to this extent the involvement of h of crime is established and we do not find any iiie9aiity or irreguiarity in t^e judgment of the tria! court. fc P.T.O. XI-HC-78 3T7^T^Tf^TRF cT^n' 3T1^T $hHich ^ HPT^I ?h^lc^ 3:5cT<^TFTT^RT, ^Tn^Ko, f^o11^^< ^^•.A<t?..^%3/ 4 200 3TT^7T q^^T (li^i^^) g^TTW^TW^T cbi^Id41^ m1R^rt: ^* te^<i^^i< ^3:Tf^T3TT^T Learned counse! for the 4ccused/appeiiont ar9ued that on facts the offence under Section 302 <^f IPC WQS not made out against the accused/appeilant, asthe decea^ed was cousin of accused/appellant, on a AlAJe^>^'^>^^—T smolJ matter regarding paptitiow s^ Mahuatree $ome quarrej started between the deceased ^ the accused ond QJI of a sudden the accused picked up the stone ond Qttdcked the deceased. On the other hand/ learned| AdditionQi Public Prosecutor for the Stote supported the Judgment of the tri|al court. In order to appreciate the the accused/appeiiant, we haye pe?|> PW-2 Samaru, who is son| cros^-exammGtion that accused arguments advanced by learn&d counsel for ^used the evidence avdlabie on record. |of deceased Jhimtu, has Qdmitted in his |s his uncle & deceosed wos his father. Accused used to demond his shar4 from his father in the Mohua tres and on account of that there was some di4)ute. PW-3 Bhursu in his cross examination has stated that it is correct to sa^ that ^ome quarreJ took place between the aecused and the deceased in the n|iarket in conneetion wlth the share in the Mahua tree and Jhimtu ^Iapped th^ accused. Tlie deceosed and accused both have consumed tanda1 (intoxicant s| Therefore, from the above ^ the deceased wds cousin of accusei Mahua tree and in that connection between the two and in that proces ^b^tance). |vid€nceavdlable on record, it is cleor thQt ^ occused was demanding hi^ share in the ^n the fdtefyi doy some quarrei took piace ail of a sudden the accused picked up the stons and attacked on the head of {jsceased. There is nothin9 on the record to show that the accused attacked ^he deceased wlth a prepian or acted in an uriu^uai or crue! manner. th&refo^ ^^> ^n^ i^ MiiQr^iv covcrcd undcr tv ^ Xl-HC-78 ^TP-T^I Sh*ilW 3'sr^TraT^T, ^Tn'94i<o, f^ciK-iy ^^^<T^3/7^ ^200 3TT^T tra^T (<ic<^q^) a^T^lf^RT^ cTSTT3TR?TsbHlch —,.^t < .-,••'- c:; ^ c)^i^^ r ?^TTW^T3TI^T chi^Td41-< wq^fy ^ te^t if^zR ^3Tf^T3:n^T Exceptlon-IV of Section 300 of t^| 302 of the IPC was not made o| conviction Asentence under Sectic e IPC. As such, th©offence under Section ut Q9alnst t^e occused/oppeliant ancj the |n 302 of the IPC cannot be sustGined. In the result, the appea) |s partiy ollowed, conviction and sentence imposed upon the Gccused/appelia^t under Section 302 of IPC are set aslde and instead therepf, accused/app^ II of IPC and sentenced to underg ilant is convicted under Section 304 Part- 3 R.I. for 7yecars. It hos bsen stated that compjetsd more than 9 years of s cgccu^ed/GppeliGnt Is in detentio^ since 20.3.1997 and thereby he has sntence. It is therefore, directed that if the accused/appeilant js not reqi|iired in any other ca$e, he be released forthwith. h Sd/- L.C, Bhadoo Judge Sd/- V.K. Shrivatava Judge P.T.O.