c^ :3t^ CF00000616S1 N-o. fiofe ^nBanAfCrmmar) -. .APREAL: PRtS@N€R sr^2^^& Name Tather's Name. _Q_ Residentf^ ^- Age _aa=33L. Scntenc?d to^itbl'fgg^'gs?^/^" on 3,0' f& .^6_ -% &2- ^fTa^i I y. by_^@r_^S@£ r^^^^ UnderSection. •V, —•—.^\^ It isexplained.to the piis!Ba |th»fciit^ .•ifeyj,d |i^^!^uauft^^'aq^"^gygi^tfe6a8^ for ^eveuilays':ui esffMl^^^^pM^BinUSBp^EsSi:ij ;»the;^legalpractltiQner dees not aE^sdU^^SBsen.^ss .Ae^ ^ .heard st aUif legal ^praetitiQneF the co-UTt may proceed at once with'Ahe ease and willnotbe obiigedtogiveahearingto sj^^egalpractitionerwhQ-sBSMft'^pear^^i —'^ z 1. Date of ap^cation for eopy of Judgemeiit:— fS» 2. DateofwhichcQgy;Eeceiyed:-.a<^-(2-- <?6 3. Date on whjch appeal sent:- . &- £-9 :C 4. Whetfaerthftprisoner wisKed tobe representedOT not :- . : . A; No._ 606 _ Name ^^^§[5__ Yes^-Ifep i—^o Continued in No.__ s^S" —<s3 TufeST' Jail Dated <.^- ^7 Forwarded to the CHIEF JUDICIAL S'HiQIStR^TE ^^7W>i^ -<^ tegether with a eopy ofc:Judgement or orderpassed in the transmission to the pioper Applleate Court. for favour of l'\ Su perintendeijt-' DsteQfrccelptiHC.J.M. O&ee. l^'i'f'j &atc of receipt of record tosioQSf^^'. Memo pf Appeal of the Appellate Court. No. 'i ('i'). dated ^~-hat.^ Foiwaided to the_H'i <4- •S'r ^o^ h ^J't^L ^o^^n^'t-' < / e.R.MAGlSTRATB :t e 6f receipt in i/j, Bi XJ-HC-22 -g^ -siprBq, sj)-dl\41!!o, Wil'Hy' _.C:?-:..^pft.'..tj.y..fl9a/..i icb { r^- Wq?ff%wq? BR?!~wI f?:TR?'3D^SI. ^TN^'Hf^i \ '^..; •I, an^t'g^nwgf^r DIVISIONBENCH: HQN'BLEMR. L.C. SH&DOO & HON'BLE MR.DHIRENDRA MISItRA. JJ 22.02.2006 Dr. ShaUesh Ahuja, Advoca; Shri U.N.S. Deo, State/respondent. Oral judginent dictated on Additional Per Dhfa'eadia Mishra, J. qil'ilfo'ii'H 'WRlf 4fs^S <f<i*sl< •^-aiPtPT siTOi ;e for the appeUaat. . Public Prosecutor for ttie Dais. Accused/appellaat Dukhuijam has preferrcd this appeal against the judgment dated 24.12:1996 ^assedin Sessions Trial No.269/96 by which leanxed trial Judge after h^lding the accuSed/appeUaat guUty of causiag death of his daugliter-inj-law Smt. Rambati has conyicted him uader Section 302 of the Indiafa Penal Code and sentenced him. to ujidergo rigorous imprisormieut f<^r life. The prosecytion case, in brief, is thaton 15.4.1996 m the afteinoon at about 4.00 p.in. |fhe appeUarit asked for Eoeal froin deceased Smt. Ramtiati, howev^r, she refused to give meal on tas uittunely demaad. The appeUant lieiug eru-aged by refusal picked up ttie axe and assaulted ftie deceased/jwho iras tiying t6 Skip, after foUowing her. Deceased feU on the grou^id and fhe appeUant fled away from there. The deceased narrated th^ uicident that appellant has assaulted her bv axe. She was admitte^ la R.N.T. Hospital, Koridagaon. She lodged the Dejiati Nalishi (Ex.P-lj2) on 16.4.1996 at about 1.15 a,m. in the Police Sl4tion Kondagaon, wl^ereupon the ofFence luider Sectioa 307 [ift^^ng^- Xi-HC-22 •^S! •;qf!lT?pl. ^fll'a'l®.fe'Ri^ \eo sn^i-^i K-li.'ti Sf^S ^RNi'^f^i •l.r^' SD^T ?'Riiwafta Z.+- Gonvterted 123/^6 ofthe Indian Penal Cpde was regi^ was recorded vide Ex.P-10 b^j Magistrate, Kondagaon on 16.4.1p( Smt. Rambati died m the hospital whereupon fhe offence was Penal Cdde and Crune No. registermg fhe offence, fhe polpic conducted an inquest offhe dea^ witaesses. Dead body was sent ' Jagdalpiu~, where Dr. V.K. Jha the dead body ofdeceased and postDiortein report the doctor fo^ surface of clun aad one stitchdd vertebra. Doctor opiaed that iajujri over fhe neck was sufficient to iutei'aal exanunation, he found cord was pardally cut. The cause| injury to spiaal cord and same sent to the hospital for medical e^ by Dr. V.S. Dungar(PW-2) and The weapon of ofifence was sent| Assistant Sui^eon, R.N.T. Hos^ weapon of ofFence and gave hi^ injuries prcsent over the perspn) 4^r (t|W subinitted weapon m/questiou. Memorani|lum 21.4. l9^6/ ^T£rf^'i*iH<nT'^i^^l <fa^R ^'3(PgiT3^I rtered vide Ex. P-12. Dyiag Declaration the Naib Tehsildar-cuai-Executive $96 in between 7.35 a.m. to 7.45 a.ffl. 'durmg trcatment at about 9.00 p.iu., info Section 302 of fhe Indiaa was registered vide Ex.P-13. After Ipice prpceeded fpr iuvestigation aad (^ body vide Ex.P-5 in presence of the postmortem to Maharani Hospital, r-6) conducted the postniorteni pver his reportvide Ex.P-11. In fh.e jind one abrasion injuiy over interior wound behiad the neck over C-5 were anti-mortem and the iiijury death in fhe orduiarv course. On C-5 vertebra was cut and spiaal of death was opined as shock due to homicidal ia natiMe. Deceased was tamiaation, MLG of Rambati was done ^nedical examiaation report is Ex.P^7. for examinatiou vide Ex. P-17 to fhe ^ital, Jagdalpur, who exarmned the report Ex.P-8 aad opined that the of Ranibati cotild be caused bv fhe of accused was recorded on uijujnes caluse ttiat wAs [Trf^ ^fo^ XI-HC-22 -3-^-3(TqRF[, 'ei^tWTS, hcll'uy snt^i'qn h-u* sn^ sti*ii"»^lftii ^ <-- --L [(\ sn^i's^iTwaft^ ' After-completirig the inve Court of leamed Additional Chi^f JudicialMagistrate, Jagdalpurwho ia tum coinnutted fhe case to leanjied Sessions Judge, Jagdalpur for trial. Leamed Sessions Judge fi-ame4 ;'ttle charge under Section 302 of the Indiad Penal Code. The accusei^ abjured his guflt. The prosecution ia order to estabUsh its case exanifned seven witnesses ia all, Stateinent ofappeUantwas recordedbyleajcued Sessions Judge under Section 313 of the Cr.P.C. ia which he deni^d the circumstaaces appearing agatast and stated that he has beeri Bven otherwise fi~om perusal of] So far as the involvement cbi<4^1>i1'') TnT^Tf ^ 1^%t ^^t< ^SlPOTSII^H itigation, charge sheet was filed ia the falsely implicated ia fhe case. After hearulg counsel foij- fhe parties, leamed Sessions Judge convicted and sentenced the ac<Aised as above. Hoi&icidal death of dece^sed Sint. Ratnbati is not ia dispute. the statement of Dr. V.K. Jha(PW-6), who performed autopsy on tt^e dead bpdy of deceased, aad dyiag declaration given'by fhe dece^sed before the Executive Magistrate whereia she has stated that fh^ appeUarit caused assault on her by au axe, it is estabUshed fhat the de^th ofRambati was homicidal in nature. s.' • • .. |3fthe appeUant ia fhe iustant offence is concemed, fhere is no eyewitijiess to the incident. The case of the prosecution is based on fhe d^iag declaration given by fhe deceased Rambati; firstly, the F.I.R. whic|i was lodged at the iastaace ofRambati in the police station and seconidly, the dymg declaration made before the Executive Magistrate cum that appeUant caused fhe abo^e iajury on her neck by the axe. The . / .' . . .. *'' I . ! . - .. ; . -•_ : _-'„ above dy^iig declaration is conjoborated by the stateinent of Dr. V.K. Maib Tehsildar. whereta she has stated -. 7 Jha, wh»has couducted the p^stuiortein on the body ofdeceased aad [^^fe^ XJ-HC-22 ST^I^iI 'f^fHTSflt^I ^TIT^?^T?tT ,t r 'ssi ~^w<'\<i. •ST&wKS, faciiyy • ^ (!PI?(I gpnirai ail^TTOllwafpT \ folind Ouhs recoikled found injuiy behind the neck declaration has also conoborat doctor treatine Snit Rambati of Smt. Rambati. PW-2 Dr.V.S. the iucident, had found iDciSed and stated that when he was conscious. PW-3 Shri C.D, Si4g dyia.g declaration (Ex.P-10) of | Divisional Magistrate, Kond^ac|n declaration and whereupon he a.ia. in. tlie uionuiig and presence of doctor. PW-4 Paggi(ri ia relation, has stated that assaulted faere by axe for not tafeen to Koadgaon Police atid fhereafter she was adinittdd Sub-Inspector has stated that Di the basis bfmformation given by| Thus, on the basis of declaration of deceased Rambatil, Nalishi (Ex.P-12), and also from| iuvolvement of fhe appeUaat inj established, Leamed counsel for the Statidn eimiity bplween the appeUant daughter-in-law aad the hiciden) 'wfeN'qpRffi •Htezt ^re?R ^7 3iPg»ianSsi |of deceased on C-5 vertebra. • Dying 4ed by the MLC report Ex.P-7 wheu the incised wouiid behiad the necK ;ar, who treated Smt. Raiabati. after vt'ound behiad ttie neck of Smt. Rambati |treating Smt. Rambati, she was faUy i4gh, Naib Tehsildar, who recorded the Smt. Rambati., has stated fhat Sub authorized him to record fhe dying bame to R.N.T, Hospital at about 7.35 fhe stateiaent of Rambati in fhe ^ram, who is grandson ofthe appellant Kambati infonned him that accused meal aad thereaffer, Ranibati was on. cot where she lodged the report m fhe ti6spital. PW-7 S.K. Paiidey, ihati NaUshi (Ex.P-12) was recorded on Smt. Rambati. ;^idence of above witnesses and dyfaig ti], which is duly corroborated by Dehati |(he statement ofPaggitrain (PW-4) ffae Gommitting fhe offence iu question is gi}tt0g jappeUant submits that fher? was no aud the deceased,. as she was his ^ took place on fhe spur ofmtoinent, ia ['Tf^iR^ 1 XI-HC-22 .SiT^I^I re,-)i.'* aii^i WIWO^Tf ^si •^|!<4i<v|t|, -gTflWTS, R.Kti-ay ^\ <nwii ffifnefi SII^I'TCIWHftTT •s-1 meditation on a sudden rage and| ^il^lfel^ 'HTR^Tf ^ 'fel?t <^1-t-$K ^sipgqan^i fhe heat of passion, as the dec^ased did not prpvide uieal on being •» ' I • demaaded by the appenaat. Th^ oifence was coinmitted without pre- fhe appeUaat gave only a siugle blow by axe on the back of the nec|cfof fhe deceased aad ttierefore, the offence does not travel beyorid Seij;tion 304 Part II offhe I.P.C. On fhe ofher haad, learae^ Additional PubUc Prosecutor for fhe • 1 State supports the judginent oftrjal Court. We have heard Dr. Ahujsj, Advocate for the appeUaut & SIui U.N.S, Deo, Addl. Public Prosecul^r for fhe State/respondent. So far as th& argumeu.t of ^eamed counsel for fhe appeUant that fhe incident took place aU of a s spiir pf moment, in the heat ofpi available on record, we find that to Cause deatfa and the iacident meal at abQUt 4.00 p.m, and th^ grouad that it is Tuitunely an^ fhis act of deceaspd earaged fhe appellant who picked up an ax^ aad assaulted the deceased on fhe back ofher neck and oiily one: as fhe deceapfed on the neck by aij -. / udden wifhout pre-meditatioa, ia fhe ^ssioii is concemed, fi'om fhe evideuce there was no motive for the appellant took place as the appeUant demaaded deceased refused his deniand on the ault by axe was given by fhe appellant to deceased. Taking mto consideration t)ie circuinstances in whj.ch fhe offence was committed by the appeUa^it and further consideriag that fhe appeUant had no enmity and Ijhereby no motive to cause death of deceased. Inteation to cause deaBJi ofRambati caanot be attributed to the appeUant, hpwever, the mari|aer in which assault was made upon axe> fhe fact that fhe appeUarit had T [^^ri •i li XI.HC-22 gn^r^ii R;-)i<* 3IB?i srqwgiig (- 1 •^^ y f\ y^, ^ ^ •S^ .^WId^, EJi'dl'U'lri, 'fawi'yy 9-'2-— offie knowledge that the uijiu-y, whicjh deceased, may case his death is In the result, fhe appeal is appeUaiit uader Section 302 fhereof, the.appellaat is convicte^l under Section 304 Part-II ofthe custody siace April, 1996 and years in jail, therefore, fii view ofj undergo the sentence ah'eady liberty forthwifh, ifnot required iji .ggrtified copy as per rules.l Sd/- L.C.BHADOO Judge cbi^T'c^fr'T^m^ii' ^f^st <F»I^,K ^T sipgtl.afl^l he is causiag QU fhe person offhe 4'stablished. Ipartly succeeds. Convictioii awarded to ^&e Cr.P.C. is hereby set aside, iastead for comimssion of offence pzmishable [ndiaa Penal Code. The appeUant is in such, he has completed almost 10 jfhe above the appeUarit is senteaced to jjidergone by him. AppeUant be set at connection witfa any other case. *s luhden Ul Sd/- DHIRENDRA MISHRA Judge ./ - / ' [TT^ ^fo^l i" l!