^!S^^^S^^S -K %5S^6W ^.- ., XII-188/(Jaii) ^J.P.R.—5,000-9-81 ..; 6vft \hS,^3G Nslon benci"^ ^-nniiiBlj l0£.....-_. No. Faiher's namc — — ^P^^ Xe.i.lcnce-^^^ <g5^ q^F^Affc - Name --"—, .. „ . ^^"^ ^'\^iYL^_„_^^3-^32-^1 r^^ ' Senicnced to - 3^y(^^ ^ (| "| ff-q^—o" — -•—^——^- ^—— - Under .cction a-i^^.-^ 3^ - by --.-——-^lf iPc ^;lia^ %- :/ 1 it h cxplained to ihc prisoficr Uuii if he hlatcs or wishes to be represcnted b\ ^ Ic^al practilioner ihcAppclaie Cnirr williiolproceed wilh tSw base for seven c?^ys uni^s the 'legai practiii<u^r ^ppears. If thc iegar practiiioner doe^ rot&prtor-^;ij: in seve^'day^fcc may .noi be .heard ai al! !f the prisoner stales ihal hc does nol wisii 10 .v^.^berepreseated by iegal practitioner the court may procccd a? once with the rase aBd ;wi!I not be obliged to g.ive a hearing to any lega! practitioncr w,ho should appcar, S Dale of Application for copy of Judgemenl ———»-^.^.-— .2 • .l;0aleofwh!ch copy receivcd —-^-^^/.^^^3i^—^^.^.. 3 Date cn which Appeal sent ———^<=^)—XI^^Z.Q-^.^..^ 4 Whether the prisoner wishes to be represented or not - Ycs/No. -^.._^.im.£..-.,..-.._.-..-. Conti^ued. in— 'l^^&^'S^- - H,——-l^.-?-——-- :::"4.U^T?::: -dated-^L£-&4-c}-4-— 198- Forwarded lo the CHiEF JUDJCiAL MAGiSTRATE -* ^LM-^..-.__. to gs&thcr'wilh a copy of judgenH'lnt or orctcr pas.sed in the c^.se. for favoisr cf ^tra^smissio.n to the pr^per Appiil^te Court. <^yg TW^j^i ^q-^ Superiniend€nt--Cei! D&te ofreceipt in C. J. M/S Office- Dateqfrecei.pt ofrecordto accompany——ff~v Memo', of Appeal of the Appeliate Court.f€^^w msi- ^.^\j(,iy,|... ......' No.- J^__-_. ^ s^^s^ss0^^^ Forwarde.d to the ^v)^^«i>ir^_9]^®^_rH?S!fJ^^^ Y^ CJ.Magistrate VL^ Date efreceipt in Appliate Court——— —r" •..., fp^r.o,) 's^:^ y e.s^. 9 XI-HC-78 *<1*1C<11 Sh+lich ^^T ^i^ii^i^, ^Tfl^^i^, f®«ni^j^< C-Tf. (\- t^o' IM 3 9/96. C^(^^ &.. Jl .U^ $>/ ?^. 200 3TT^T ^)T f^TT^ ,3TT^r$h^l<=h '<\ 311^1 M^ch ('^'fj^^) ^<TTW^cT^n^T D.B. 26- Hon'bie Mr. L.C. 8 doo and <=bl^?<"l41-1 ^I^^T^ffeT:^<I^I^K ^3Tf^T3T[^T Hon'b!e Mr. Dhlrendra Mjshra, .JJ_, -2-2007 Shri Rajesh Jain, Advocate |:or the appeiiants. Shri Akhi! Mishra, Panei Laf^er for the respondent/State. Heard on i.A. No. 3751/2002 fiied in Criminai Appeai No. 1439/1996 for permission to amen|d father's name of appeilant Dewaia. Appiication is ailowed. Cou the amendment during the course Since the appeiiants in Cr. 1439/1006 are in detention since hsei for appeiiant is directed to carry out |of the day. lAppeai No. 1438/1996 & Cr. Appeai No. |17M3-1994, as they have not been abie to furnish baii bonds, therefore v^ith ihe consent of iearned counsei for respective parti'es, these two app^ais are being dlsposed of finaily by this common judgment as they arise o Arguments heard. Oral judgment dictated on ipate. ORAL Per L.C.Bhadoo. J.: j nese appeais are asrecte^ Lit of same crime number. IJUDGMENT against the judgment of convictlon and order of sentence dated 23.7.1996 passed by 1s'" Additional Sessions Judge, Ambikapur, District Sar^ iearned Additionai Sessions Judl guilty for commission of offenc^ luja in S.T. No.220/94, whereby the e after hoiding the accused/appeiiants under Section 395 read with 397 & Section 302 of the indian Penai |Code, sentenced them to undergo ten years; R.i. and imprisonment for directed to run concurrentiy. 2. Ca.se of the prQsecution in and uncie were in jaii in connecti |fe respectiveiy. Both the sentences are brief is that P.Vv. 4 Devsharan's slster on with murder, therefore on 13-3-1994 P.T.O, XI-HC-78 3TT^TcFTf^Tk> cT§TT3T^?T5b^i<=h 3^" -4Hld<4, ^THy4!^, (®l<ni^y . C-r.^^o.^59/^ TrTOFrT^ri^<^:^:^;H3^(«?^ 20° W^\ M^l* (<ic<^^) ?^T^K^T3T1^T 'a- -1 Lachhminia (since deceased) ^ chl^Id41-< tTFT^f^teI^t<Rl^< ^3Tf^T3T^T •as going to Ambikapur with Rs. 5,000/'- for the purpose of baii of the sist^r and uncie of Devsharan. On next day morning, Nanhu informed Dev^ that his mother is jying dead reached to the spot and saw t^ crush injury on her head and fc(' Devsharan came to his viijage >haran and his wife Dev Kumari in the field lear Mahua Bhattl. On hearing this, they |at Lachhminia was iying dead, there was |rain materiat was coming out of the skuii. ^nd informed Rambaksh (P.vv. 5), Manraj, Suresh (P.vv'.S) etc. Devshar4n found ciothes of his mother but the currency notes of Rs. 5,000/- w^re missing, therefore, he iodged report of the incident under Ex. P-3 in ttt Singh (P;vv.9) ieft for the scen^ Ex. P"15, prepared inquest Lachhminia. Body of Lachhminj under Ex. P-18 with Poiice Co le Poiice Station, Basantpur. S.H.O. R.P. of occurrence, after issuing notice under inder Ex. P-16 on the dead body of [a was sent for posi mortem examination hstabie Ram Prakash. Dr. Govind Singh (P.Vv. T) conducted post mor(:em and prepared post mortem report Ex. P-13. The Investigating Olficer prepared site pian under Ex. P-17. During the investigation, whiie i|n poiice custody, accused Heeraial aiias |r Ex. P-5 regarding currency notes, in Laliu gave memorandum und^ pursuance of that, he got recov| terricot pant stained with biood, •^ 3red under Ex. P-6 one green coiour oid one blue coiour shirt stalned with blood and Rs. 25/'-, 2 notes of Rs. 14'- denomination and one note of Rs. 5/- denomination stained with biool custoay, gave memorandum un<i notes of Rs. 500/- denominatiorj 3. Accused Dewaia, whiie in the poilce ier Ex. P-7 and in pursuance of that, five stained with biood, 4 notes of Rs. 50/'- denomination, one Chaddi wer4 taken into possession under Ex: P-8. [ Axe- the weapon of offence, w^ piain soii and biood stained soii (s taken into possession under Ex. P-9, ^vere taken into possession under Ex. P- P.T.O. o XI-HC-78 STT^T^T^TW rw^r^m^ Hl^dl sb^iicft 73[ ^IHId'4, ^Tf1y41<$, (Gt^l'My (^.A-t4o.^L?^(5^ CT- A ^o. \\i^fe^^ 200 3<|^| L|^cb (y^d^) ?^TW^T3TI^T chHld^ ^l^dT^te^t<^^l< ^3rf^T3TT^T 10 from the piace of occurrer|ice. One Sandow Baniyan, one towei of green coiour of the accused w^re taken into possession under Ex. P-11 from accused-appeiiant Dewai^, one white Paijama of accused Dewaia was taken into possession und^r Ex. P-12. Rs. 1100/'- i.e. 22 notes of Rs. 50/- denomination and one iun^ 20 from Rajpati, sister of accu] Heeraiai were taken into pos$ i were taken into possessiorf under Ex. P- 3ed Heeraiai. Pieces of naiis of accused ^ession under Ex. P-21. The recovered articles were sent for cherrlicai examlnation to Forensic Science Laboratory, Raipur from wher^ Report Ex. P-26 was received. Biood stained articies v/ere sent for s^roiogist report, from where Report Ex. P- 29 was received. Arter compjeti^n of investigation, charge sheet was fiied in the Court of Jucjidal Magistr^te First Ciass, Ramanujganj who in turn commined the case to the S^ssions Judge, Ambikapur from where learned Additionai SessionsJud^e received the case on transferfortrial. 3, The prosecution in ord^r to estabiish the charge against the accused persons exarnined 10 were recorded under Section 31' rnateriai appearing against them| that they are innocent and they In question. Learned Additionail litnesses. Stateriients of accused persons |13 of Cr.P.C. in which they denied the in the prosecution evidence and stated |iave been faisely impiicated in the crime Sessions Judge after hearing iearned [ counsej for respective parties bonvicted and sentenced the accused persons as aforementioned. 4. We have heard Shri Raje^ appeliants and Shri Akhii Mishra, 5. Shri Jain has not disputed over Dr. Govind Singh (P.v'V. T)| h Jain, Advocate on behaif of accused- 3anel Lawyer on behaif of the State. ;he homicidai death of Lachhminia, more has siaied that on 15-3-19a4 he was Assistant Surgeon of Primary He|aith Centre, vv'adrafnagar. On that day, P.T.O. XI-HC-78 (G) ^n^T^Tf^TT^ cTSTT3TR?T5b^l<=t) ^^[ ^l^ld<4, ^Tfl^4l(o, f^^l^y . t^.Ho.^^^1' wmrgmra? •^••^•^••^^•^,jR;200 341^1 W^h (^^<st^) ?^TW^i?crw^T •^. he conducted postmortem on| He noticed that there was injur^ was fractured and braln materit not possibie for him to give c^ injuries found on the head wei| course of nature, these injuries| As per report Ex. PM28 sent by| has died as a resuit of homicidl 5s estabiished that the death of 6. So far as invoivement question is concerned, there is appeilants with the crime. The evidence. The prosecution has accused based on the foiiowlna i. that the deceasei Dewaia and Heers li. that at the instai stained with bioo< were recoverea accused were ai stained with bio< jnstance of accu; from her sister'; recovered. 7. In order to establjsh tr examined P.w. 4 Devsharan, <=hl^Id41^ ^l^dT^te^it^^K ^aTf^TW^T the body of Lachhminia, wife of Rajaram. on right side on the head bone, skuii bone was visibie. He further stated ihat it was use of death, however he stated that the sufficient to cause death in the ordinary tA/ere ante mortem and homicidai in nature. Dr. D. K. Satpathy, deceased Lachhminia injury. Therefore, in view of the above, it .achhminia was homiddai in nature. »f the accused-appeiiants in the crime in io direct evidence to connect the accused- who'ie case rests upon the circumstantia) tried to estabtish the charge against the circumstances:- was iast seen with accused-appeliants ial when she was alive; \i€e of the accused Dewaia, Rs« 2500/- and 4 currency notes of Rs. 50/'- each |nd Baniyan, towel and Paijama of the |o recovered. Naiis of accused Heeraiai |d were taken into possession. At the jed Heeraial Rs. 1100/- were recovered residence and pant and shirt were ^se circumstances, the prosecution has ;|on of the deceased, who has stated that P.T.O. XI-HC-78 ^N^ 3TT^T^Tf^ri^ cr§TT3TT^T$h^lGh tll^KII Sh+lich ^^T^TraT^PT, ^TH<rlJI<o, (®1^11<iy ^•^.Ho;.^32/?fc •••rw S). , C-r.f\.Ysio. t^3^/9fc ^ll^l 45|cb (li,c<^<s<^) ^ 200 ^RfTW^TfN^TI^T -r- his mother went to Ambikapur| was having Rs. 40150/- with h^ that his mother went aiong witl examined as P.vv. 2, who hi evidence of PW. 4 Devsharan Devsharan that she saw the d^ceased going with Heeraiaj and Dewaia. P.vv'. 4 Devsharan, son of t^ accompanying the accused aprf is to the efrect that his nie^ Lachhminia with accused Heer has not supported the above 4 there is no evidence on record deceased) was iast seen in the | just before her death. Even thh 8. As far as recovety pf bi Rs. 2500/- from the possession biood stained Baniyan, towe concerned, in the F. 3. L. rep< that cn the tov^e'i and Paijama, was no biood. Simiiariy biood w human biood was found on cun regarding the blood group of connect the accused persons vi for the prosecution to estabjjs <=bl^Id^l^ ^l^^T^tel^t<f^<^l< ^"3Tf^RT3TI^T to get his father reieased on baii and she r. On enquiry, his niece Devanti disclosed Heeraiai and Dewaia. Devanti has been is turned hostiie and not supported the She has not stated that she disciosed to ie deceased had not seen Lachhminia teilants Heeralai and Dewaia. His evidence w Devanti informed hlm that she saw 1aial and Dewaia whereas P.W. 2 Devanti Ivldence of P.Vv'. 4 Devsharan. Therefore, (o estabiish the fact that Lachhminia (since lcompany of accused Dewaia and Heeraiai jast seen fact has not been mentioned jn the F.i.R., therefore, the prosecMtion has utteriy faiied to estabiish the iast seen theory. )od stained currency notes to the tune of |of the accused Devvaia under Ex. P-8 an<j and Paijama of accused Dewaia is |rt under Ex. P-26, it has been mentioned tiood was found whereas in Baniyan, thsre ^s found on the nait marked as T v^hereas no biood was found on nail m^rked as '!'. As per the Seroiogist report, -lency notes and pant but there is no report flood found cn these artldes.in order to '|th the crime in question, it was necessary that human blood which was found on P.T.O. XI-HC-78 ^^- 3:n^T^H'f^TW 3^?T5h^icb .V << ^cT ^iqicrl^, ^Tn<141<o, fslQll^^< ^l*4dl sb<41cb -^--'--•---^- ^FT 200 (^•A.^t). \^^(^~ 3^1^1 ^5icb ?^<TTW^cf3n^T tibe thel-e ihese currency notes was of prosecution has been faiied to| of currency notes, the accus^d crime in question because currency notes were in possesti as far as accused Heeraiai is biood was found as per F.3.1 therefore, as per Seroiogist is no report that the human bio|o< found on the clothes of connected with the crime in qus 9. For the foregoing circumstantiai evidence to question. Therefore, the conl accused appeilants cannot be ^ 10. in the resuit, the appeai| conviction under Sections 3951 i.P.C. and sentences imposec| aside. They are acquitted of| appeiiants are in detention they be set at iiberty forthwith if Sd/- L.C, Bhadoo Judge <=t)i^?c<i41-i ^i^oiT^:tec^'<Ri<^i< ^3:rf^R'3TT^T biood group of the deceased, which the estabilsh. Mereiy on the basis of recovery persons cannot be connected with the is nothing on recora to show that these ^ion of the deceased Lachhminia. Simiiariy c|oncerned, though on his fuii pant and shirt, .. report Dut ine &iooa was aisintegratea, i:, origin couid not be determined. There of the biood group of the deceased was Heeraial, as such, he cannot be ^stion. there is no cogent and clear itiect the accused persons with the crime in 1/iction and sentence imposed upon the lustained. i|s of accused appeliants succeed and their read with Section 397 and Section 302 of upon them under those sectlons are set |the above charges. it is stated that the 17-3-1994, therefore it is directed that |not required m any other case. Sd/- Dhirendra Mishra Judge rebort. biolod ac4used re&sons, connect sirlce P.T.O.