"^ X[I".189<JaiI)CJ.P.R-/9-94 v 9hf}- ^s^f ^ -- \ •» \ CF0000059642 No _ _^1_/59.2. e)^f:^Hr^- '" Fathefs name APPEAL OF Name .x> ^ ^^ A* t\. ^ff-f-ft^ •<<i/^— /\- « ^ . ^\ Residence -.<^7<?-^ %<&/y ^^^^y/</ ^//^^s^WTF-^ Aee ^;^. „-° Sentenced to ^Al T»P' ( ' Under Section ion -^-^KT^W ~w -""^'^^•^^TtrT^ _by ^^TW ^^7C^ ftf^ r^iS^- ^^rfij^T ^/£?^/TC^J/e} •-^—^- ] t is explained to fhe prisoBer that if he states he wishes to be represented by a legal practitioner the appellate Court will not proceed with ihe case for sevendays unless the legal practitioner appears earlier. Tf the legal practitioner does not appear within seven days he may not heard at all if the Prisoner states that he does not wish to be repre- se^ted by legal practitioner the court rnay proceed at once with the case and will not 1 be obliged to give a heariDg to my legal practilioner who should appear. i-2a A'^-"'- !1 Date of Application for copy of Judgemen^ 2 Date on which copy received 3 Date on which Appeal sent 4 Whether the prisoner wishes to be represented or^<rf f^, 9.?^ ^^^^99"/^^ ^^^ ^ c^/^-^7—~^^//^/^Y G^r^^'/^ No._ Dated _^ @ / 19^. No, Confine ^~\' Q(7^^o^^ <s</^^/^ ^^.^f^/^^^/^/^r^^.^^^ 'fyyv) gether with a copy ofjudgement or order passed in the case for favour of transmi- ssion to the proper Appellate^court. •^f-^'-s-^'S ,.-smMW^^!^J^ l^!sfipennfeadeff^spui-r Jail Date of receipt io Office --. f Date. 6f receipt of reccrd to accompany the MsmoofAppeal to the Appellate court No Dated 199 Forwarded to the Date of receipt in Appellate court ,L- S.T.O.) C-S3': XI-HC-22 3^ •=qKI^Tq', ^Tf1^JI<o, fa^l^i^i M5«ch *<l^dl sh^icb 3TT^?T .fo...A..^r;.^§^ 3Ti^T^T RpTt^^TT^T ^TTO^rf^T $h^|cb 3TI^?T ?^TT9T ^cT Division BenclT~~=~ Hon'ble Mr. L.C. Bhadoo and Hon'ble Mr. Dhirendra Mishra. JJI 14-11-2006 Mrs. Savite Tiwari. counsel f<|>r the Mr. Akhii Mishra, Panel Law^er Today the matter has been| application for final hearing of urgent hearing of final hearingl application for modjfication of bail) jearned counsei for the parties, the i|natter appellant terforthe Stete/respondent. [listed for hearing on I.A.No.308/2005, I, I.A.No.309/2005, application for application, and I.A.No.2771/2005, order granted eariier. As agreed by is heard finally. artpeal the Additjonal Sessions Judge, Ma^ deceased Mahaveer on his hea' <=bi^f^41ri wr^ff ^ te^ <Ri^i< ^) 3Tf^T ^TI^T Oral judgment dictated on D^is. Per LC. Bhadoo. J: - By this appeaj under Sect|on 374 (2) of the Cr.P.C., accused/ appellantGambhirsai Gond has qu|estioned legalityand correctness ofthe judgment of conviction and order df sentence dated 27-8-1998 passed by lendragarh, District: Korea, in Sessions Triai No.256^7, whereby iearned ^dditional Sessions Judge after holding the accused/appellant guilty for cor|nmission of offence under Sectlon 302 ofthe I.P.C., sentenced him to unde^go imprisonmentfor Ijfe. Case of the prosecution, in t^rief, is that on 31st May, 1997,at about 5 p.m. Mahaveer (since deceasecjl) went to the house of Bhagvwndas. When Bagarsai, deceased Mahav^er and eyewtoess Phulbasia, wife of Bhagvrandas, were sitting in the ho|jse of Bhagv^ndas, the accused came to the house of Bhagwandas cat'rying axe in his hand and attacked <|i and fled away from the scene of (^y^) [h ^ XI-HC-22 7EET r^iqicnq, ^TT|^<|$, Rt<-ll^< _..Cp..^.5:^^^. ^ll^dl *^1* ''""'" " • - •-- - »^qF ^SFO^- 3TI^T^)T f^TW3TT^?T Sh^ich^f?cT CT^?T 5^<TT^R: ^rf?cT We 6CCUrrence, as a resUlt ot which sustained a cut injury on left pariet^l cms. x 3 cms. and brain matter vkas thereof parietal & temporal bon^s immediatety informed Sheela Devi incident. She came on the spot husband she reported the matter information report Ex.P-1. deceaseel received fatal injury and & temporal regions in the size of 17 visible from the injury as a result were cut. Bhagwandas (PW-4) (PW-1), wife of the deceased aboutthe ^nd after seeing the oondition of her to Police Station: Podi under the first The Station House Officer a< 302 of the I.P.C. left for the scen^ report Ex.P-2 of the body of Mahav^er & blood stained soil from the pla^ possession clothes of the accused the accused gave information Ex.F^- offence, and in pursuance ofthat h^ The body of Mahaveer was sent fo|r Health Centre, Chirmiri, where Dr. mortem and prepared the post-mort^m doctor noticed the injury of incised over left parietal and temporal regio^ 'W nature and the death was due to | injury on the vital organ. The weap<>n his opinion and vide Ex.P-9, he opir Mahaveer was possible by the assa|ult plan Ex.P-13 was prepared. Tt chemical examination to the Foren^ Ex.P-14, from where the report Ex.P- <=hl^?^41-1 HTR^Tf ^f te^t <Rl<-<ll< ^3:rf^T3:n^?T ter registering the ease under Section of occurrence, prepared the inquest and took into possession plain soil t;e of oceurrence. He also took into |nder Ex.P-4. WhUe in potice custody, ^-7 regarding the axe, the weapon of got recovered the axe under Ex.P-6. post-mortem examination to Primary IA.K. Agrawaf (PW-8) condacted post- report Ex.P-8. (n post-mortem, the l^ound in the size of 17 cres. x 3 ©ms. t»s. He opined that the injury was fatal |shock and haemorrhage as a result of of offence was sent to the doctor for ^ed that the injury found on the body of of the weapon of offence. The site 1e recwered articles were sent for i^ic Scienw Laboratory, Sagar, under -114 was received. (^ft^^fet) ^^ :-3S> XI-HC-22 3^T ^I^Krl^, ^Til^4!^, [ct^l^< ^,^^^^^ RtOoS 3TT^T^)T RFTT^^TT^T 5h^ich^rf?cT ^*' MN 3T^?T ^TTW ^f?cf After completion of Court of Judicial Magistrate, Fir41 committed the case to the Ses^ learned Additional Sessions Judge jnvesti^ation, charge sheet was fited in the ^t Class, Manendragarh, who in turn ^ions Judge. Ambikapur, from where Ireceived the case on transfer for trial. The prosecution in order to| examined ten witnesses. Statemejnt Section 313 of the Cr.P.C. in against him in the prosecution he has been falsely implicated in th^ estabtlsh charge agaJnst the accused of the accused was recorded under wh|ich he denied the material api^aring evidlsnce and steted ttiat he is innocentand crime. Learned Additional Session^ respective counsel and perusal oft|ie accused as aforementioned. We have heard Mrs. Sa' appellant and Mr. Akhil Mishra, Stete/respondent. Mrs. Tiwari, learned counse|l homicidal death of h4ahaveer. Phulbasia (PW-2) & Bagarsai evidence that they were sitting an axe and attacked the deceased) evidence is corroborated by the 8) who has stated that the injury caused by the axe, which was and the death was homicidal in ni cbl^f^^-t HTR^rf ^f fe^t <f^^l< ^)3^H3T^T Judge after hearing the arguments of record, convicted and sentsenced the (/ita Tiwari, tearned counset for the l^arned Panel Lawyer on behalf of the for the appellant, did not dispute the Ap^irt from that, the eyewitnesses namely, (P\i|V-3) have categorically stated in their alohg with Mahaveer, accused came wfl;h on his head with the ax©. The above m^dical evidence of Dr. A.K. Agraw^il (P- ws|s fatal in nature and the same coutd be recbvered at the instance of the accused, liture. Therefore, in view of this ocular ^ (^^fe^) XI-HC-22 3^^|qi^q^ ^Tfl^JI(^, f^^ll^y 3TT^T V^h ^1*4^11 $h+<|eb ^ 200 f^s 3TI^T^T (<-lich3T^T ^W^^cT 3T^?T 5^TW:^rf?cT and medical evidence, rt is establ homicidal in nature. As far as involvement of question is concemed, we have 2), wife of Bhagwandas, in whc}! Mahaveer & Bagarsai were sittjng) categorically stated in her evidencjs and attacked the deceased on his a result of whjch Mahaveer fell dov| scene of occurrence, thereafter, h^i inform the wife of the deceased. ^ her husband and thereafter, she Police Station. Bagarsai (PW-3), was sitting on the scene of occurr^ evidence of Phulbasia and has and attacked the deceased with |' father-in-Iaw of the accused and| evidence that the accused evidence of Phulbasia & Bagarsaj cross-examination there is nothing witnesses suffers from any infirm| rightly relied upon the evidence of Their evidence has also been A.K. Agrawal (PW-8), who has post-mortem on the body of Mahs there was a cut injury on left pari opined that the injury, which was p^rused chl^fcrl^l^ iTTRoTf ^ IWt ^R^H: ^'3ri^R'3TI^T hect that the death of Mahaveer was statted ie accused/api^llant in the crime in the evidence of Phulbasia (PW- »e house she along with deceased ] at the time of the incident. She has that the accused came with an axe lead twice without saying anything, as |?n and the accused fled away from the husband came to whom she sent to ^ie came along with her daughter, saw |vas sent for lodging the report 'm the o has stated in his evidence that he mce, has also corroborated the above that the accused came with an axe i|e axe. This PW-3 is none else than he has categorically stated in hjs ^d the deceased witti the axe. The is convincing, credible and jn their (o show that the evidence of Vhose two Therefore, the Court below has |=»hu!basia (PW-2) & B^arsai (PW-3). by the medteaj evidence of Dr. in his evicience ttiat he conducted ijveer on 2-6-1997 and observed that ^tal & temporat regions. He has also Ifound on the head of the ^eceas^l. infirm^y corroborated staDed (^^^r) /•r -XI-HC-22 (^t 3'aET ^iqiciq, ^Tft<M41(o, ^l<ni^< 3TT^T^T^F ^l^dlshMI* -•-•••—•-•-<-^^200- f^s 3^T^T f^TW3TI^T 5h^i<=b^rf?cT 3TI^T ^RTF^K ^cT couia oe causea t>y the axe ln instance of the accused. Therefok evidence, it is established that tht injury, which was the cause of deatlf luestion, which was recovered at the 'e, from the above ocular and medical accused was the author of the fatal of Mahaveer. Learned counsel for the a| judgment of the Apex Court in th^ State of Maharashtra reported accused attacked the deceased oi\ accused does not travel beyond Seij On the other hand, Mr. appearing on behalf of the State/i the trial Court. |Akhil Mishra, Jeamed Panel Lawyer sspondent, supported the judgment of In order to bring offence un< necessary that either the case is Section 300 of the I.P.C. or wherel by the accused was not with intentit been discussed above, deceaset Phulbasia was sitting in the house at that time, the accused came with| he immediately attacked the dece^ side of the axe which resulted intc cms., even bone was cut and bra| Mahaveer died instantaneously. T< of the accused is covered under a| the I.P.C. As far as intention is c^ background of the offence, part of <=hl^?Ql41-1 WToTt ^ te^ <f^^l< ^3Tf^T3T^T ipellant while placing reliance on the matter of Suresh Sitarsun Surve v. 2003 CRI.L.J. 475 argued that the ly once, therefore, offence ag^jnst the tion 304 Part-11 ofthe I.P.C. jler Section 304 Part-11 of the t.P.C. it is c|overed under any of the Exceptions of |it is established that the injury caused >n to cause death of the victim. As has Mahaveer along with Bagarsai & |3f Bhagwandas, husband of Phulbasia. an axe and without telking to any one, tsed on his head from the sharp edge cut injury in the size of 17 cms. x 3 |n material was vislble from the injury. lere is nothing on record that the case |iy of the Exceptions of Section 300 of >ncerned, it can be gattiered from the <he body where the injury was inflid^i, (^^fe^) XI-HC-22 3^T ^|<41d<4, ^Tft<141(o, ^l^ll^y 3<l^l 43<<h Ml*4dl sht4icb ' • ;^<< ''" ^'"•"••'••^ 2^0- f^^; 3:fT^T^T R^JchW^T ^W^^'cT Soma 3TT^T 5^cTT^K ^fgcf th6 weapon ot ottence used an<tl attacked the deceased with the de^dly of the head with such a force thatithe material became visible from th^ accused to cause death of Mahs|\ Agrawal (PW-8) has stated that the| i and the death was homicidal in natujre. trtat As far as the judgment rel appellant is concerned, it is distin^uishable were number of accused persons| Court reached to the conclusion that the accused stabbed the dect Court held that the case which ^ under Section 304 Part-1 of the I.PJ accused was the author of the fateil deceased Mahaveer. In the circumstances, we are no illegality or infirmity in the findi based on legal.clinching and convir Sd/.. L.C, Bhadoo Judge <=hl4ld41^ ^ll^dT^ff^tiRl^K ^)3:rf^T3n^T the manner in which tha accused weapon like axe on the vital organ skull bone was cut and the brain jnjury. Therefore, intention of the /eer was writ large. Even Dr. A.K. injury was on the vital part of the body ied upon by learned counset for the on facts. In that case, there who attacked the deceased and the there was no convincing evidence sased more than once, therefore, the |s made out against the accused was \. Whereas, in the present case, the I injury which resulted into the death of |of the considered opinfon that there is (ig of the trial Court, as the finding is ^cing evidence. in the result, the appeal. b|eing devoid of merit, is liable to be dismissed and it is hereby dismissec) Consequently, I.A.Nos.308/2t)05. 309/2005 and 2771/2005 stand djsposed of. Sd/- Dhirendra Mishra Judge (If^^f^T)