!?f;][I-189/(Jail) <$1L.P.^R. 11/94/2,000 < ^-f^r ^"2L] ^j Wl^TOS? ^ APPEAL OF PRISONER ^*m?onBen^(^!nan' No............2^r^^.....................Name.....5.W.^^.A7., -r's namp ..$WS^L ^31^. ^O. ^O^P^/..^..f./.&..T^..'VI.QI!9£^.:..... ••••^•^**.. •••,»,\«. ••••••..• •.. ••/.':.•••••••••/•^.»••••^... ••^••«••••^- ••••••.•• •4. ••••••••••••••• '^^.^..C^.^J..__... Ao^ .......36.$.^r^..... - ....^ .......^ .•••.•—•••/••.•••••••• ^««•••••^s««•••T. f\KS^ ••.••»•••»<»»...•••'•••••••••••••••—•••••• <^« ••••••••^ Sentenced to .^/M^.".f^.e^r:..^....A^..... On......-J.-2:.'..5''./.^s'. .?6.^.^..<p'.c:................ hv 'Iy.^f>.!fwQJ. 7U.^..^..VGU^^:&i.^^6^ •.»•••••••<t. ••••••<•••••••<(/7»- •••••• •••••••••••••••••"'••• 31 -I! — •••••••f ••••••<•••••••<(^»-• • • • • • • • ••• •••••••••••f • • S<-^^toz3 ^;^/^^^ ^c^lp^ (^^ :5 .T^ ^-D < ^g sfr^' It is explained to the prisoner that if he states or wishes to be represented l?fy legal practitioner the Appellate Court will not proceed with the base for seven days unless the legal practitioner appears . If the legalpractitioner does not appear within seven days he may not heard at all Ifihe prisoner states that he does not wish to be repre- sented by legal practitianer tbe court may proceed at once with the case and will not be obliged to give a hearing to any legal practitioner vvho should appear . ^ I 2 3 4 Dateof Application for copy of Judgement ........... Uate on which copyreceived . e. )9v<s~ on which Appeal seat Whether the prisoner wishestobe represented or not - Yes / No Su istd^ ^ ^/^ 'S cm.^CL/ Np. Confinedin ...... .....^^r^^...^ Jail ...............^//^......?.f?:&;. No.......^....S-.Ci).v....I. ^.^.Dated.................. .. 199 .....^..tfc.}^.................. Forwarded to the^HEE-JUOICIAL MAGIOTRATE ^^^^^y:}^^' togather which a copy of judgement or order passed in the case f^r favourof trans- missionto the proper Appellate Court. t§-f^? cu' e|-fil ^•> C^<rn -tX^^ Centr,af^y,^ipur. (M.P ^ .•^%]^L-JaiI.l Date of receipt in... ........ ................... office Date of receipt record to accompany the Memo ofAppeal to ihe Appellate court ........ ..............4-.... ....JAeALPUR...<:, No Forwarded to thc Dated ....................199 ii&a.^ ^ ^ ^. Date of receipt inAppellate Court &C<.N^^_^2_ KewptcQs^^ ^^^.^fc.Cflta^ Jabalpat.., ( P. T.0. ) •^ -:1;':.'^'<:M';',:^::/.^^1 K".[-HC-22 ^\..L-n''....- •w^ -^pjT^rq. "^^m, r^^^[ •^IT^T ^T. '^TI?F^3T[^T ^:iT^' W^ ,+ c^:. ^pi^rr'^qi ^^^l^ :^vt . ^i^U 'l^^i?' ^i^rT^fr^R^f^T ^HT^^pfFf Tfp^f ^ ft^ ~<^7ZR ^'^^T^T^- Division Bea<*h : Hou*ble ShrjJustice L.C. Bhado Hon^ble Shri Justice V.K Shriva^tava, J 09/12/2005 Shri Suiyakant Mishra, Shri Ashish Shukla, Addit M.P.S. Bhatia, Panel Lawyer for Oral Judginent. Coi^nsel for the appeUant tonal PubUc Proseczitor wifh Shri tjhe respondent/State, This appeal is directed 12/05/1995 passed by IVtii Addi Sessions Trial No. 288/1994 Sesisons Judge, Raipur/after for the cominiission of murdei convicted under Section 302 of undergo miprisonm.ent for life. The case of the prosecuti^ brofhier of fhe accused/appellaii| Station Hoiise Officer, PoUce fhe effect fhat at abozit 5.00 a,4 came to his hoiise and iafoiisied was not at his house. He uioniuig after waking up, he BMd he saw that the body of BU(| , J & agamst fhe judgment dated itional Sessions Jzidge, Raipur, ia ^hereby the leamed Additional hol^iiig fhe accused/appeUant guUty of his wife- Budhiyarin Bai, Ifhe I.P.C and sentenced hixa to ciiti^n, in brief, is fhat Chaituram, llaii|L gave a report (Ex.P/2) to flie Sta|tion: Mainpur on 25/04/1994 to .3(01. his younger brofher Szuiaraixi jhmi fhat his wife Bzidhiyarm Bai wa^ sleepig with fhe chUd, In fhe enaliiired fhe whereabouts of his wife Ihiyadn Bai was tymg near water [Tft^ ^R^^t <^HC-22 sj'T^^l^ >' .^^iT^TH'^, i ^^l ^ '^y- -U%^:1 '-K^ W^ .2&8 '^n^T^i- 1 'f^F^ni^r 1 '^T^W^rfta "?^T^R ^f^r + W(4^H -Wraf.^ -f^t T^?R: ^eTf^m^T^i. spring on which he informed FagU2|am aiid Sumaru and aU offhem saw fhe body which y^as lymg in fllat condition. There was clotted blood on fhe uostaTil and nioufli. Tliere was no visible uijiiry on fhe body, On receiving ftie report, Station: M&mpur took tip ftie iaves prepared Paacl occuiTence^ Budhiyaria Bai (Ex. P/ 7) . The dea Station House Officer, PoUce |tigation and went to fhe place of |tnama of fhe dead body of ^. body was sent for postfiiorteni to Doctor SiinU Siagh, Assistaiit) Siirgeon (PW/6) Mampur, who condzicted fhe postaiorteDi on fhe |5ody of Budhiyaria Bai (Ex.P/5) ia which he opiaed that the cause of death of Budhiyann Bai was asphyxia due to fhrottlmg uponj was registered iinder Ex,P/8. A^ custody, gave a memoraaduni rcg^rdmg weapon and m pursuaace of fhat he got recovered, a w< coinpletition of irivestigation, cha|rge-sheet was filed agaiast fhe acciised/appeUaiit ia flie Coiirt ofl Gadyabaadh, who ia tum coniiG[itted fhe case to the Sessions Judge, Raipur froin where IVfh Ad<] fhe case on trausfer for torial. The prosecution ia order tc| accused/appeUaiit ^xamiaed nme the leamed Sessions Judge re accused/ appeUant under Section \ which first Hiformation report ^cused/appeUant whUe m pofce mden club (Ex.P/10). After Jzidicial Magistrate First Class/ litiorial Sessions Judge received prove the offence agaiast fhe witaesses, On fhe ofher haad, sorded fhe stafeinent of the 313 ofthe Cr.P.C., in which he [7ft^ ^n^^ XI-HC-22 -t "^^'"^TRM^, '^itA:iTi^»t^TRTLF?' ^TT^r^i 1^N ^ti^i i ^RNT'Rfi'a 'qrew^Tt^' ^ '200 •^r^r' ^Tli^I ^cH^R TTf^T '^- denied fhe prosecutioa evidence has been falsely mipUcated iii fhej ^iid stated fhat he is ianocent aad cnine. Leamed Additional arguiaents of leanied Additional cotinsel for fhe accused/appellf accused as Bieiitioned in fhe firsi Sessjions We have heard Mr. £he accused/ appeUant and Mr. Prosecutor wifh Shri M.P.S. respoudent/State, perused thej evidence avaUable on record. Siiiya|kaat 4y The fact of the hoxnicidal has not been disputed accused/appeUaat Apart froin Dr, Suxul Siagh and fhe postnicjrt on record that Bzidhiyarui Bai throttliag. Therefore, it is esabl^] Bai was hoxnicidal ta nature. As far as involvenient coininittmg the niurder of his aad ocular evideace to fhe incid( incid4tnt .7i^T^^ "^TR^f "H ft%t ^T^R ^sTi^FrzTf^r Judge after heanng the Public Prosecutor and fhe leamd iit, convicted aad sentenced tiie paragraph oftiie judginent. Mishra, learaed counsel for jAshisli Shiikla, Additional Publlc jBhatia, Panel Lawyer for fhe jijidgment offhe trial Court aad fhe ^iaturc of deafh of Budhiyarm Bai learaied counsel for fhe [that, as per fhe evidence of PW/6 ^rtem report (Ex,P/5)/ it has conie on accozint of axphyxia diie to thed that tKe deafh of Biidhiyarui dled of fhe accused/appellaiit ia w}fe is concenied/ fhere is no direct aiid the whole case is based on [Tft^'^fe^ XI-HC-22 '^~S7 ^l^i^T^^ '1^^'^^%,'''r%l<?lp:i-'.p.. 2 + ^n^i^T f^ri^'s^T W^^ Tffi'fi ^^r'^ff^R :^ta> ^v^. circum.staiitial evidence ie., extra accused/appeUant before Tiharu^-am Patel aad Faghuram Patel. In order to prove ftie ofFeiice agautist the accused/appeUaiit based >^TTffe^h ^prof 'n 1^^ TJ^ZR W ^Tf^R ^^ judicial coufession raade by-fhe on fhe circuinstantial evideno conviction on circiinistasitial e itselffhat eircumstances from wh^ch an inference of guilt could be drawn have been estabMshed By fhe prosecution aad fhat att fhe not only of a conclusive nature bi as to iuierrmgfy\pomLt only to fh^ capable of aay explanation whjich is not consistent with fhe hypothesis ofthe guilt ofthe acc fhe Apex Court ia the case of ^sed, as has been held by Hou'ble IVascir Ahnwd aml einother Vs. State of Bihar, reported in AO^ Now, we shall proceed to fhe prosecution. One witness n^ accused/appeUaat said to have not been exammed by fhe prose4 ia-chief PW/3 Tiharuram accused/ appeUaat Sunaram iofomied him fhat he has went to the house of Chaituraj|n appiised him about what the house of othLer Patel of flzej casiae ciuitdered 1 before fhe Cburt can base tidence, fhe Coiirt must satisfy zinimpeachable evidence led by circunistaaces piit together are t also complete the chain so fuUy guilt of te accused and are^OLOt 2001SC 2416. ^xaaiuie the evidence adduced by ^mely Faguram before whom the extra judicial confession has [•zition, In para 1 of examiaation- IPatel has stated that the to his house on Mon^ay and his wife and thereafter he k., the brofher of Suuaram aiid told him and Sunaram went to vfflage. This witness along with [Tft^'^fe^ ^Jpj-Tr^q^ '@'T[I^F[Q, 1^<Y1li''H;< .;.-:;, ^!t ^T^I^T . | I^^NT^^ '^'?:fR)"^iT^T v 'Wl . 230 ^Tii^T '^n^R 'efN -b •^N^FTR -HT^f ^ fi^J- T^RZR ^ accUso Chaituram went to PoUce Static fhereafter fhe Police came to fhe Paachnama of dead body of Bu< PoUce enquured froia fhe accuse^ exaBiiaation by D.P.P. (prosecziti<| ia fhe first iDLstaace, Sunarani tc account of fall ia the forest and about fhe correct fhing fhen fhat he has coniBiitted fhe niisl ftiereafter fhis witoaess wejit to fh|< Sunaram aiid iiifonaed hiai what! he along wifh ChaiturEuii aad Station aad fhe Station House d ascertamiag fhe facts froin cross-exaaiination by counsel witoess has stated fhat fhe PoUce Station, fherefore, he app4 and fhereafter SHO took report impression. SHO did uot believ^ fhe village aad for three days he aiid after beating by fhe PoUce tiaie disclosed fhat he has satird' never disclosed ihis fact, ^n: Maiapur to lodge report j5lace ofoccurrence and prepared thiyaria Bai ^airi: on Tuesday fhe In paraigraph 3 of the cross- >n), fhis wituess has stated that ^ld hiai that his wife had died oa lon second tioie when he asked ^sed/appeUaat Sunaraai told him. ttake and xnurdered liis wife aad house of Qhaiturain along wxth ! Sunaraoi told him^aied ^iereafter Maairam went to the PoUce )fficer had written a report after In pai-agraph 7 of fhe ^or the accused/appellant, fhis rcport was not lodged at the ^sed that the report is not correct hica and obtained his fhiunh their stateoients and he came to snquired fhe inatter ia fhe village accused/-appeUarit for fhe first lered his wife aiid before that he Kojtwar Chditurain. confcct ipp^sed ft-OBl tfce + [Tft^ y^ XI-HC-22 •3-S -=qi?F?3, W^W^, 'iM^HTy: - . -^:' 'im 3Ti^T^-r t^TRT3T[N 5h^Si<=h TlfiU ^- <. i ^TI^T '^fT^R Tlf^f . - 6 In order to coiivict flie confession made hy fhe accus| ascertaia fhat fhe extora jiidicial iccused based on extra jiidicial 'd, the Court was required to ^onfession made by the accused was volzintaiy and tnie. The ev^dence bf fhis witaess shows fhat before^ Faguraoi tiie accused is PW/3 - TUiarurain does not evidence is waveruig. In fhie first| [••m-TOf^-ft^ T?^R iTSTJ^R^T^T said to have niade extra judicial confession, but lie has .not bee^i exaaiinLed and fhe evidence of jmspire confidence becai e the histaace, he has stated fhat flie acciised/appeUaut came to his |iouse aad uiformed hisn that he has inurdercd his wife, tiiercafteJT he has stated fhat fhe accuried told him fhat his wife died diie |to fall isi fhe forest aad flien he enquired froxn him and asked hii|i to teU fhe corrcct fhiag, fhen he disclosed that he had niiuTlercdi stated that he was accoiapaaie(| his wtfe. Morcver, fhis witaess by Chaiturain when the teport (ExP/2) was lodged before fh<^ Police Station aiid agam ia paragraph 7 of cross-examiaatioiji contraiy evidence was given by him ia which he has stated that t|ie correct report was nof given at Police Sation aiid dzie to beatuigjby fhe PoUce for continuos fhree days, fhe accused/appellaiit for confession before fhe PoUce fhat Ijie had Aurdred his wife. the first tmie inade extra judicial Perusal of the oierg iiitima|ion (Ex.P/2) shows that fhere is - 8 no nieiition of extra jiidici^l confession Biade by fhe accused/appellaiit beforc fhis wi1^iess or other witaess. The nxerg mLtioiatiou siinply saysfhatou 2^-4-1994 inthe monungat about + [Tft^'^fezt -^^.-...'a XI-HC-22' ^TT^T^I fe^^H^T '^Hh^Trf|^ < 1 -^^- ^Hzn^f^, '^~a"|^R%', T^TI^ 5.00 a.iii. the accused/appeUan who gave fhe nierg iiitiiaation night aiid when search was isif found near fhe water spriixg went to Faguraiii aiid Suniaru occuiTeiice aiid saw fhe body. extra judicial coiifession before was given in pursziaace fhereof occasion for Chaiturajii to judicial confession before him, fact of m.akuig extra judicial co| before lodguig fhe report. Gaoie to his brother Chaituram fh^t his wife was m-issiiig sin<ce last ^de, body of Btidhiyarm Bai was oi^tside tihie yicuiity. Thereafter he asid titien went to flie place of flad the acctised/appeUant m.ade' Tpianiram aiid fhe inerg intiination ^y Chaitiiraoi, then fhere was no sTi^press flie fact pf makuig extra a^ Tiharurain has clearly stated the ^ifession by Sunaram before hioi P^/3 e^fctra In view of fhe above discr^ opiaion that fhe evidence of coiifidence of flie Court. Even P^ ui examiiiatioii-in-chief fllat 011 hioi fhat Sunarani has inade that he has laurdered his wife. saB3.e has not beeu io^formed nitiination (ExP/2), thercfore, Tlierc is no other evidence to fhe niiirder of his wife Biidhiy^j iiistaiice of fhe accused/appeU^nt recovered, but no blocxl was foi^nd •^fqf^fn- 'qTR^rf ^ fe^ Tf^f^R ^^rf^HBTr^r + bpaiicies, we are ofthe considered - TUiaruraiu does not iaspire ^/2-Chaitziram has also stated jhis enquuy Tihaniram informed judicial confessioii before him ^s has been nientioned above, the jto fhe PoUce whUe giviag laerg Ns evidence caiinot be beUeved. fhe accused/ appellaat wifh |rm Bai, Apart froni fhat, at the a wooden stick (Ex, P/ 10) was on the stick aiid it is coinniou [Trt^^'Ri"Et ^ XI-HC-22 •^^ ^jpTR^, 'mfRFT^, 't^^T! ^iia "•^ 2Q9 STI^f'^T R-li^h ^R^T •^RW^f R^u + ^f r/f that iii fhe viLlage side such ^ Therefore;, Bierely 011 the basis accused/appeUaut caiinot be of BudhiYarui Bai. Goni^ected In view of the above, we are| flle findio.gs of tiie trial Court Iiold|n under Section 302 ofthe I.P.C antl for Ifcfe BT€. not based on aiiy legsp caanot be sustamed, In fhe rcsult, the appeal su^ The coiivictidn aiid sentence passec for coniniission of fhe ofFeiice pzuii| Iiidiaii Penal Code are set aside, not i^quired ia any ofher case. Sd/- L.C. Bhadoo Judge ^N^rit^ 'RR^rf ^ ft^t <fa^i< iF^fS^^TT^I iticks are kept ia tlie house. of recovery of wooden stick, with the crime of niurder of fhe coiisidered opiiiioa that ig fhe accused/appeUaiit guilty sexitenciag hini ieiprisonnient evidence, fherefore, fhe saoie beeds and fhe saaie is allowed. agaiast fhe acczised/appeUaiit shable zinder Section 302 of fhe pe be set at liberty forfhwifh, tf Sd/- V.K. Shrivatava Judge [Tft^^fe^-