atei ^^^^^^^^sS^^&^;^,.^; S^^^^^^^Silft s^i^^^^^ ^?f^SiS6^& C^ 3'7^i37 CF0000060812 ^<. 10. 'S.~TG APPEAL PRISONER Name ~~@-fS-3?Crr •r, Mc • 2-3?/95' Fattier's Name. f ^S.s'ESj- ^^^@@L.—^-.^- Resident'S^' -~WTVsyr ;7~~- __^"~^s\^;:^~ Sentenced to__'^i^@;Q_ ~s<-;«W7?T on j2t .-'/ l~-M-&- Under Section_^<o^_ 9fT^- •^•T^'by'IS^W 'itf^'c.isy- «aimr<'^>TO?tgt^" It is explaiaed to the prisoner that if he states or wishes to be represented Ay a iegal practitioner the Appellate Court will not proceed with the base for seven days unlessthe legal practitioner appears If the legal praoti^oner doesnot appear within seven days he may be fieaid at a.tl if tegal practitioner the court inay proceed at onee with the case and willndt be obtiged to give a bearing to riny legal practitioner whoshould appear. Date ofSapplication forcopy of Judgement :- ^Jc . 2. Date Qfwhich copy received :- 2^' -^^ '^6 3. Date on which appeal sent :- 2-fe * '' ^ ^ 4. Whether the prisoner wished to be represented or not :- _^2.6__Name -^T^'STOT -f-crw' No. Continued in Yes/^hT' -a\\-\^va>" "l UT<?-^f Jail ^S^CS^- ^I3^EL ^. No. .48J /SR^^rrr/?'!? Dated 1'i/f//^6 7 Forwarded to the CHIEF TUDICIAL MAGISTRATE <~3^.(2r'^A/ P Uf^ tegether with a copy of Judgement or order passed in (transmission lo fhe proper Applleate Court. case for favour of Daieofreceipt inCJ. M. Office. ^a^'^i^ Date of receipt Qf record fo accompany. Memo of Appeal of .th.e Appellate Court. No. - ^sl CI; __.dajEed S ^ /W?j ForwaidedtQ.the._11 6^:_ •r.'7_J&^'<-^' e. R. MAGtSTRATE Suymtende^^q^p^ Sub-JaiI 6f receipt iri Applieate ^ jrt. l:a XI-HC-22 XS-HC-22 3TI^<i«RI •R^anCT ~aaflCT?^irgg • r^ ^g 'qTqRpf, -ggraJiS, 'fs^irey fe^fcA..^^^- 3n^r?siTWT!N DIVISION BENCH: HON'BjLESHRIL.C.BHADOO &HO(i]'BLE SHRI DHIRENDRA MISHRA, JJ CRIMINAL APPEAL N0. 375 of 1997 Appeltant Respondent Vs. Shri Praveen Das learned Shri U.N.S. Deo Mishra, learned P,L. forthe respcjndent/State OR^ ^rate^r tiwrfi'?'ftost'tf i?3rf;<TO3n^i Laxman State of Madhya Pradesh jcounsel forlhe appellant. AddiNnal Public Prosecutor with Shri Akhil L JUDG_MENT (09.03.2006) Per L.C. Bhadoo. J By this appeal the accus^d/appellant has challenged the legality, propriety and correctness of tl^e judgment of convtetion andorder of sentence dated 21.11.1996 pas^ed by Additional Session Judge, Bastar at Jagdalpur in Session Trial N|s. 235/1995 whereby learned Additional Session Judge after holding the accused/appellant guilty for commissjon of the off9nce under section 30J2 of the IPC sentenced him to undergo ./ • imprisofrfnent for life. [1[ft^^fe^t 1 XI-HC-22 •S^ «i)|^ld4,^itWHS, fcl<viwy 31T^T^T . •M??3n^r s^^i^ yFs^l ^s^- sn^fg^iwof^i qiplfcTifrT •WRii•?'fezt TfsregTt ^T 3lf;tTI[ Slfef 2. The case of the prosecution |i brief is that PW-2 Arjun lodged a report P-7 in police station Ganga!o| about 5 a.m. he along with his wif^ collecting Mahua seeds and Kamal()iyee aged about 12 yearswas at residence. After one hour Kamglday^e came weeping to the forest and informed his mother that when Charri or to the effect that on that day at and mother went to the forest for ru was steeping on the cot Laxman murdered Chamru by assautting with|a rammer as he attacked three-four times. Receiving this report the Stat|on House Officer of Police Station S.S. Dhruv PW-4|eft for the scene of jaccurrence. After giving notice to the Panchas he prepared Panchnama P-| took into possession the underwear) stained and plain soil were taken into| weapon ofthe offence was taken intf sent for post mortem examination.t^ where Dr. M.K. Suruyavanshi conductjed the post mortem examination on the body of therieceased and prepare^ postmortem report P-10. 3. After completion of the investi^atioh the charge sheet was filed 1 of the dead body of Chamru. He of the deceased under P-2. Blood Ipossession under P-3. Rammer i.e. |> possession under P-9. Body was Primary Health Centre Gangaloor against the accused/appeltant in the Court of Judicial Magistrate First Class, Jagdalpur who in turncommitt^d the case to the Cpurt of Session Judge Jagdalpur from where learned JAdditional Session Judge receh/ed the case on transfer for trial, 4. To prove the charges ag^i prosecution examined six witnessesj recorded under ^ection 313ofthe Cod^ -. / fe» inst the accused/appellant the Statement of the accused was ofCriminal Procedure in which he [ift^ifia^ XI-HC-22 311^1'^T 'R;ii?73:n^i ShH <if5fl ^-: ?=ET '^11'1|1<V)''1, .BTil'M'IS, [»«11'Mli< s- wqc'trwfrai aenied the prosecution evidence is innocent and has been falsSly impl app^aring against him and stated that he ieated in the case. 5. Learned Additional Sessjon J the counsel for the respective partii accused as mentioned in paragraph |jdge after hearing thearguments of 1's has convicted and sentenced the ^ne of thisjudgment. 6. We have heard Shri Pra\ accused/appellant and Shri U.N. S Shri Akhil Mishra Panel Lawyer for th hn Das learned counsel for the Qteo Additional Public Prosecutor and State. . 7. Homicidal death of Chamru is |iot in dispute. Kar|ialdayee 8. As far as the involvement of question is concerned, PW-1 incident who has witnessed the ci|i! assaulted the deceased with ramnfier Kamaldayee was aged about 13 evidence of a child witness the Coili witness has riot been subjected to matter of Arbind Sinah Vs. State SCC 41 S, has held that child witnest should look for corroboration of tutoring. In the matter of >. / ctii'^!?i4ii ^H<?if ^ 'f^st ^•(•^K '^aipgqgi^i he accused/appellant in the crime in is the eyewitness to the ime in question when the accused r. At the time of giving evidence years. For placing reliance on the irt is required to ascertain that such utoring as the Supreme court in the ?f Bihar reported in 1995 SUDD (4) is prone to tutoring and hence court particul^rly when the evidence befrays traces Panchhi and others Vs. State of U.P. reported in AIR1998 Supreme Codrt 2726 the Apex Court has held that it cannet be said that the evidence <|>f a child witness would alwaysstand ["^ ^fe^... .- ^ XI-HC-22 ?;A sii^r'^r Kt'ii* st^t a;t]Ni'ttf?? '\- -T5? ^TRRPT, d'jlWI'., («IC11<111<. KINMI Wincfi 3I^?f'g^ITWtlf?3 irretrievably stigmatized. It is not] evidence shall be reiected, everf evidence of a child witness must great circumspection because a cf others tell them and thus a chil Evidence of a child witness is] competent to testify and the courf convinced about the quality and r{ described the detail scenario imp| based placing reliance thereupon. the law that if a witness is a child his if it is found reliable. The law is that be evaluated more carefully and with lil^is susceptibte to beswayed bywhat ^ witness is an easy prey to tutoring. permissible if such witness is found after careful scrutinyof ite evidence is iliability of the same, where the witness icating the appellant, conviction can be 9. Applying the above principl Kamaldayee she has categoric| evidence that Arjun and his wif^ mo.ming, she was in the house house. Accus^d came and assaull the accused while attacking the .forest and informed her grand examination She has categorical attacking the deceased. She has brooming.and after hearing the c injuries on his h&ad and Chamru vi thespot. 10. Learned counsel' for understanding,6f this witness can ,*l^icl4)-< lIIHSTf'? fS^I \htfl< ^i'siPmaiI^T |e ifwe look into the evidence of PW-1 ally stated in paragraph one of her went to collect Mahua seeds in the ^nd Chamru was also steeping in the (ed Chamru on his head thrice, she saw (leceased. Thereafter, she went to the Wher about the incident. in the cross |ly stated that she saw the accused Further stated that at that time she was :|-ies of Chamru she went andsaw the (as lying thereand rammerwas lyingon (ie accused/appellant argued that be assessed from the fact that in the ["qt^ ^a^ uItW XI-HC-22 311^1 ^il fS'TWSfl^?! V .^mNT ^Tft^ •^- T ~3^ "ill4ld'll, ®Ti1'M'is,(aiini+iy WRWW-irai .:.3>^.5/^. very first question when she was stated that she does not know. Ir that she was busy in brooming ar^d screams of Chamru, therefore, witnessed the crime in question.lr accused assaulting the deceased. 11, We are of the considered the counsel forthe accused/appeflant that PW-1 Kamaldayee has categ|3rically assaulting the deceased with n witness further stands corroboratl Suryavanshi PW-5who has statei] found on the head ofthe decea^ fractured and which was the cailse witness has further stated that th< times with rammer. The evidenc^ by the fact that Arjun PW-2 has came to the forest where he wa< him that accused had assaultedl which he immediately rushed tow^ stated in his evidence-that wheh] there and on inquiry Kamaidayee deceased with rammer. Arjun rep( a.m. in which also the name of t the dece^sed with rammer. <^i^^i'i tiR^if ^ 'feT^t <r<-R:i< ^T3l)TTO3Ilt?[ asked wherefrom she has come, she the cross examination she has stated she saw the assault after hearing the i1;>< shows that this witness had not other words, she has not witnessed the ipinion thatthe arguments advanced by is without any merit forthe reason stated that she saw the accused limmer on his head. Evidence of this id by the medical evidence of Dr. M.K. in his evidence thatthree injuries were ied and right temporal bone was found ise of the death of the deceased. This accused assaulted the deeeased three of Kamaldayee is further corroborated statedin his evidence that this witness cotlecting Mahua seeds and informed Chamru with rammer on his head, on ards the house. PW-3 Chander has also he heard the cries of Chamru, he went nformed him that accused assaulted the >rted the matter to the police at about11 le accused finds place that he attacked [Tf^^fe^ ?SfSSEKaB; t S 2S.: I-HC-22 an^r^T 3nt?T ^v^ •yfs^ •<:' - ^rlv:w^/ ^sr •^|A!!ri^, aqly'ic, [^cil'yy .<yr.:&.:'2>>^A sn^i TOilWHfOT 12, x Therefore, for the foregoihg witness who was aged about 1)3 inspires confidence of the Court evidence of Kamaldayee, and her| can also not be doubted. Thus finding recorded by the trial Coi^rt 302 of the IPC and sentencing h| not suffer from any illegality or infjr We 13. In the result, the appeal dismissed. It is accordingly dismi; Sd/- L.C.BHADOO Judge <^t1Llfo^ftTT Tnq^ff ^ fe%l '^i-^K ^aiPw 3ii^i reasons, the evidence of this child years at the time of giving evidence bnd there is no reason to disbetieve the presence in the house in the early hours are of the considered opinion that the convicting the accused under section |m to undergo imprisonment for life does ]rmity. being devoid of merit is liable to be sed. Sd/- Dhirendra Mishra Judge '. / [4^5 ^S^ SK?)7. 1