W 4 M.“ IMWWWWW ¢ APPEAL I ” &éz§%§ K I i )Father s na §3a&§;iiév§%2§r &A%e(3Vg§€i ’6‘7’1’3/2’7 ¢§ ?»%7%aa“%* Oh K/4‘ Und er @7737 Jsecticig gégfpc w W 3.1: ls ewlalned to the prlsoner that if he states or wishes to K “Le represented bv legal practltloner the ADpellate Court Wlll ‘ Nnot proceed With the base for seven (iavs Lnless the legal practitioner anpear‘sL If the legal practltloner does not appear w1th 1n? seven days he may not heard at all. If the orlsoner states that he does not w1sh to be represent/ed by legal practlotloner the court. may proceed at once w1th the case and will not be obliged to give a hearing to any legal practitioner who should appean A Sentenced l. Date OF Apolicatlon for copy of Judgement fgN/0jw9g-_ , *1 2. Dat’e of which copy received €/ :«r 4» NO. /.2i.z¢i% 3. Date on which anpeal sent _~_‘.[l4luLQ 6) a Whether the prisoner wished to be represented or not~Yes/No £é~g7y ..(.(. Na me mseese2§§%§%%7‘ Continued in fw M Jail _W%w No. I A7$o Dated [tibjlqQ_ 4m; ”Cg. ’ vorward to the CHIEF JUDICIAL MAGIUTRmTEgml-nbgp ““0 gather whicn a copy of order passed in the case for f our f tra nsmis he p liate Court. Superintendent thalawaf’ Date of receipt in C.3.M's Office ‘ ‘7'”‘qg . ‘t a $wwu°y ragga: 1 “Date of receipt record‘to accompany (if 17—“€? Memoof Appeal of the Appeliate Court Wwmifm WOW Kygggjyé NO. Q Dated CL 199 a ifii ‘ > r orwarded to t1 eW 5W“ Wail—a W“ I C,J. Magistrate _ ‘ Date of receipt in Appeliate Cour v/SURGUJA TY . // / ‘ W $ ¢ $v I a $g§ 7§£ WW _ ma C _ t XI—HC—22 Division Bench: Hon'blo Shn L c Bhadoo & V K h Shri GD. Vaswani,-Addi. P blic Ptosecutor with Shri D.c. Pandey, Panei Lawyer for the State. Oral judgment dictated on is. PER LC. BHADOO J. This appeai is directed agai st the judgment of aorwiction and order or sentence dated 13-1 1-1998 p seed by the 1“ Additional Sessions Judge, Ambikapur, in Sessions Tri I No.94/98 whereby leamed Additional Sessions Judge after holding the cused/appeliant guilty for commission of murder of his daughter-Ledhe, onvieted him under Section 302 of the indian Penal Code and sentenced undergo imprisonment foriife. The case of the prosecutio , in brief, is that Dhari Ram (PW-1) gave merg intimation (Ex-PIS) toP lice Shtion Balrampur on 21 -01-1898 at about 11.45 a.m. to the effect at yesterday he along with Asru, Fitui, Chandan and Guna were watchin the body of Rljni near the house of Chaman Nagasiya. They saw the ”Tekra after committing the murder of his wife, pushed Chaman out of th house auer threatening him and hide himseif in the house of Chaman, at at time he was carrying his daughter Ledhe. The time was about 12.00 eon. They heatd the sound of beating from the house of Chaman and the also heard the cries of a female child, (die that) XI~HC-22 mm - . mam mmmw Wggigjm WW ' on which they thought that the acc used has commmed the murder of his daughter. When they went to the house of Chaman they saw that the accused after committing the m r of his daughter Ledhe was swim neat the door holding crow bar in hand. Somehow, they were able, to caught hoid of the accused and sew that his daughter was lyingdead inside and there was an injury on th head of Ledhe. One piece ofwooden plank was struck in the back of e deceased; thereafter may tide the accused with a-rope.. On receiving this report, the Stahon House Ofticer, Police station Balrampur registered me First inf rmation Report (Ex-PM). left for the - scene of occurrence and after gi 'ng notice (Ex-Pl2) to the Panchas, prepared the inquest report (E prepared the site plan (Ex-PM). O wooden piece of peedatstained with blood, blood shined soil and plain soil were taken into possession from the place of occurrence under Ex-P . Site plan (Ex-P16) was prepared by Haika Patwari. Body of Ledhe wa sent for postmortem examination to the Primary Heaim Centre, Balra pur where Dr. ’SP. Vaish (PW-10) conducted postmortem on the body fLedhe andopined that the cause of death was asphyxia. coma and as a result of throttling. He found fractures on skull and hyoid bones. The zed articles were. sent to Forensic. Science Laboratory, Sager from wh e report (Ex~P/1 1) was received. After completion of theinvesti ation, charge sheet was hled against the accused in the Court of Judicial Magistrate First Class, Ramanujganj, who in tum commmd the case to e Sessions Judge. Ambikapur, from \ (the W) {y j \ x. was" wss/ u e x i V J V V XI—HC—ZZ mam Wm WW The prosecution in order to esmbHsh the chatge against he, accused examined 10 witnesses. On the other hand, statement of the. acoused was recorded under action 313 of the Code of Criminal Procedure in which he pleaded nnocence and denied the prosecutim case. He stated that he has been aiseiy implioated in the crime. Learned Additional Sessio s Judge after hearing learned counsel for the respective parties, convict d and sentenced the accused/appellant as mentioned in para one of thisju gment. We have heard learned cou sel for the parties. At the outset. leamed oou sel for the accused/appellanthas not disputed the homicidal death of L he. Apart from that. from the evidence of Dr. s.P. Vaish (PW-1 0), it ap are that theta were six injuries on the neck. hyoid bone was fractured, rietal bone was also fractured and the cause of death was asphyxia, coma and as a result of throttling. Postmortem report is Ex—PIS. T erefore, in View of the above medical evidence. it is established that dea h of Ledhe was homicidal in nahrre. Even counsel for the accu dlappeltant very fairly did not dispute the Involvement of the accusedlap ellant In the crime in question Perusal ' of the evrdence of Dhan Ram (P 1), who lodged thereport, reveals mat the accused came along with his eceased daughter Ledhe. and entered the house of Chaman. He heard cries of a female child and thereafter the cries were stopped. When the caused entered the house of Chaman, (die W) \ XI—HC-22 mam mm -WH%H WW§WW §§WW§¥T he pushed out Chaman from the him and when they heard the soq from the house of Chaman. the killed his daughter. Thereafter, the door holding crow bar in corroborated the above evide muse, he was keeping his daughter with nd of beating and cries of a female child thought that the accusediappellant has ey saw that the accused was siting at his hand. chandan (PW-6) has also Therefore, in View of the above evidence, it is established that th accused entered the house of ahaman in presence of these witnes red. Therefore, in view of the above evidence it is established that th accused was the author of the crime in question i.e. committing murdero Ledhe. sedfappellant argued mat it has come in the cross-examination of Dhari Ram (PW-1) and Chandan (PW—6) that at the time of the incident accuse became mad, therefore, the accused is entitled for the benefit of Sectio 84 of the l.P.C. and as such, he has been wrongly convicted for the co mission of the crime. We have examined the rec rd and the plea of unsound mind of‘lhe accused at the time of oommisslo of-the crime. The plea was not raised before the triai Court at any pain of time and no request was made on behalf of the defence for getting e accused medically emmined- in order to ascertain as to whether he as mentally unsound, at the time of commission of the crime. More ver, the examination of the accused carrying his daughter Ledhe and he pushed Chaman out of his hous , these witnesses heard the cries of a female child, thereafter they saw at the girl was dead. On poamortem, several injuries were found on th body of Ledhe and even her hyoid bone and parietal bone were found Learned counselfor the n s u u XI—HC-22 3 r.. ' under Section 31 of the CP.C of al th questions very intellige It is not the cas of the accused th even before r after missi f the crim at an poin of time, the accusd as ufferin o us dnes of min Now he question for det natton remainsater thour is hat as to whether at the tim of c ission of the erime, th accused a sufferin rom the unsoudness min an y reason f nsouhdnes f mind, he a inapate o know he nature o the ac o m wha h w dg o c n to . s 1 di e c t n s m d t e x s ri es ft e P. h b hd y t t te o . LK H V O A R i e te o r e o 4 is e a S is m er f S O P. A d R 191 i ih‘i d tt t n , e mal o pr e s ottd n te ad v f on t e Ac. t pon f l every. nd a e f r s o l as oin was either wrong r trary law As per the provision of Section 05 of the Inan Evid e Ac, 1872, the burde wa on e accuse o prove th eistence circumstance bnging the case within the excption of Section 84 o i..C as as een el b he Apex Cour in h matter f T.N A MAtAH . STATE F KARNATAK reported in AI 2001 SC 3828 which th Court held that h burden of prving the exception unde S n 8 on th ccused. imitar the r judgment of Apex Court in the o TATE F M V. AHMADULL reporte in AI 6 SC 998 n ct has been hei ha he burde of proving that th ent oonditi of the accused was not proe at the tim when the said offence wa mmie lies o h ccuse in iew o secti 105 of he Evidnce i is settled ositi o aw that man is presumed to be sane to possess sufficient degre o reasons to be responsible for his cts unless the conoary is proved. At no point of time, application unde n 328 of the cr.P.C. was moved by ly examined in order to ascertain as to the accused for getting him med (die W) l e n y. e at o como o e y t e w sg frm no ns d. t er l -hs eCt t e o m : e ws g f n d d b o us o ws cb f i g t f t, r at t e i XI—HC-22 V.K. Shrivatava Judge Judge g V r Vuowuw;