gm, !mgh (amt m (hmmsaemg’ c y J . ma gistrz; Date of receipt in Appeliate Ccurt 17 MAY m5 APPEAL 01 PMaOHEK 3mm. 5? Racep blsr High four; Bliaspu: _ ‘1 l m. Qé/o g; - r 191“”.-233l w tb- M .M- _.- .-_ J Fathews vame we‘x . ‘ E'LMQ In“... Sentc.u.ed m$§ §b 297/0txmr<r~$nz¢9§ ”4&3. .. Under cation 34%? 9W by rm 3mg wrwwh L g, » 3 / “‘Wv‘éuj‘vg: $1937” 1777 w 314%“ *“ " RW gym/$7 (’Zzgm it 1c xx‘xlamed to the prisoner what if hr. V~ ates or wi \es to /’\.\ if be repyesented by legal practitioner the A}: allate Cour will not pg‘wceed with the base for seven days Lu ~ss the leg L ' “ practitioner appears. If: the legal practi‘. ”mer doeu v ~ appeal: with—in seven days he may r§ot hearcl s alJ.. 1L ‘ze priscuv' r states‘t‘nat he aoesnot wish to 1w represented legal g'ticttiotioner the court mpy‘ ovoceed :7 once with xe case auzi will not be obliged to git’e a heal ,g to any l: {a1 §practitioner who should ampear. $ 1. Date of Application for copy of Judgemc N. lg: 3 a» 191%.” 2. Data of which copy received ‘ u“ ‘ '1 S‘. QQL" 3. I.) 3 on which appeal ount ”.“a _ um}: gay V 4. Mu ther the orlsoner wlsned to be reprc‘ ntecl or n'o‘ WNO -- Continuaid No. ”u lwu'u. il‘ gf‘k E§ Name a“ w Jail Qzy“ ‘lsLVrlT/awr‘QWAgim g§r _A goon ;—§r‘ yg 9/ givu 3§2T $1 gz No. . ~_ _ Dated H QS’ OS" 19 W37 W qfmgwj; "Qiféénmaygay Vorwe"‘ to the CUIEF JUDLCIAL MAGI TWW‘I‘ hi4, lto gatrxr whlcn a copy of o dor va sod 1n L case for L Joul " of tran mls°lon to the nror ar mmelliate Cox . ow} — Q tr% /‘ ' r3 eZg—«_7/o§ Superintendent Sup anaem“ Date of. receipt in C.J.M‘s Office w M “WM? Date off receipt record to accompany Memo oi‘ Appeal of the Appeliate Court KO. 'Dated . 19‘ Forwarderl to the \f1\ J' XI-HC—78 HW,WWW mm 54* “Q“aéQm 200$ Wmwiaaw) ?mmm— wmm WW WWAR MWWW é§ar%w3n%w' Division Bench: - Hon’bie Shri L.c. Bhadoo & Hon’ble Shri Dhirendra Mishra, JJ. 26-2-2007:- Shri Abhay Tiwari, coun dated 3/2/2007 sent by the Ambikapur, mentioning therein that the accused is in jail as no order h been received to release hi. Vide order dated 5/11/ 006 substantive sentence Imposed upon the accused/appellant was sus ended by this Court and he was directed to be released on bail. lt app ars that In pursuance of that the accused has not been able to furnish bal bonds, he is languishing in jail, therefore, with the consent of learned ounsel for the parties, appeal is being disposed of finally. This appeal is directed a ainstthe judgment of conviction and order of sentence dated 18/3/2005 assed by the Additional Sessions Judge (FTC) Ramanujganj in S.T. 297/2004 whereby learned Additional Sessions Judge after holding t e accused/appellant guilty for commission of offence under Section 302 of the IPC sentenced him to undergo imprisonment for life & to pay a Ine of Rs 2 000/- In default of payment of \Qe to further undergo R I for 1 ear el‘fpr the appellant. Shri M.P.S. Bhatia, Pan l Lawyer for the State/respondent. w if Oreljudgment dictated n Dais. L.C. Bhadoo, J. $ ‘ Perused xcommunicati n Superintendent, Central Jail, m P.T.O. \ 0 XI—Hc—73 XO HW,W,W mm .o ..o.o.>a?\ 200 WW(W> ‘ WWW WWW WWWffWW mmmm “1%“ gawm Case of the prosecutim is that PW-4 Kotari Bai daughter of the deceased lodged merg intimation Ex.-P/6 in the Police Station Chalgali to residing in village Kadiya all one. Her younger sister Nanki and her husband Ramsai were taking are of her since last 3-4 years. Yesterday on 6/4/2004 her maternal uncl Parmeshwar came and Informed her that her mother has dled On heart g this she went to Village Kadlya and saw l , that her mother was lying dea on the ground There was Injury on her head and blood was oozmg out of the Injury. She Inqulred from brother-In- law Ramsai, but he did not dis lose anything. Receiving the said report, Station House Offcer register d crime under Section 302 of the IPC under F l R Ex -P/7 The body of deceased Budhni Bar was sent for post- mortem examination to the P Imary Health Centre Chalgali where Dr Janeshwar Singh (PW 7) cond cted post-mortem on the body of Budhni Bai prepared the post-mort report Ex.-P/8 in which he opined that the effect that she is the resid t of Manikpur. Her mother Budhni Bai was ’l/ cause of death is traumatic s ock due to head injury and death was While homicidal in nature. the police custody, the accused gave memorandum Ex -P/4 regardin weapon of offence i e wooden genda in pursuance of that same was r covered at the instance of the accused under Ex P/5 After completion of the in estigation charge sheet was tiled against the accused in the Court of Ju icial Magistrate, 1s' Class, Ramanujganj, who in turn committed the case o the Sessions Judge Surguja from where i , learned Additional Sessions Ju ge, Ramanujganj received the case on transfer. \\\\ PTO e 1 l e i XI—HC—78 ww,m,m WW... o .oo.oo. E?\ 200 Wmwiawx) ‘ WWW WWW WWW WW éEWW WWW commission of crime only deceased Budhni Bai, her 3'“ daughter Nanki Bai, wife of the accused and the accused used to reside in the house. Nanki Bai (PW-5) has stated th at she along with her mother went to coilect Mahua fiowers, at that time her husband Ramsai came with Lathi and rushed towards her to attack her with Lathi on which her mother intervened and asked the accused to caii his son, on which the accused said that “why he should call her son, she can go and call her son. on which she replied that she is oing to Murka, asked the accused and her mother to take food and go or sieep. She left for Murka. Next. day mo'i'ning she came to know th t her mother has died, on which she came and saw her mother. There w s blood on her head. ears and mouth. She does not know who has comm ed murder of her mother. PW-4 Kotri Bai, other daughter of the decease , has stated that the accused and his wife Nanki Bai used to reside with er mother. They used to take care of her mother. Her maternal uncle P rmeshwar came and informed her that her mother has been murdered, on which she came to village Kadiya and saw that there were injuries on he d, mouth and blood was oozing out of it. The accused made her sister un; thereafter he might have attacked her mother as at that time the a cused was all alone in his house. He however did not disclose anyt ing to her. Even on her enquiry he did not disclose anything and ran aw . PW-9 Shyam Lal has stated that Budhni Bai used to reside with the acc sed and her daughter. On the fateful day when he returned from the f rest after collecting Mahua flowers, the accused was abusing his wife and he was running after his wife having club in his hand to assault her, herefore, she left for village Murka with her children. Next day morning hen he returned after collecting Mahua ‘\.\flowers at about 1 p.m. the ccused came and informed him that his \\ P.T.O. y\ a \" XI-HC—78 WW,W1W;,W Wm o..o.. 0o. ~.~... 0‘0... a1 200 WW(W) a” HW,W,W m 200 WW<W> e—é# WW§WW mmwm éawm contrary, he ran away, the accused went to PW-9 Shyam Lal and disclosed him that his mother-in-law has died, but how the deceased sustained injuries, he did not disclose. These facts were in the special knowiedge Vof- the accused as he was the only person who was in the house where the body of the deceased was lying in injured condition, therefore, burden was on the accused to explain how Budhni Bai sustained injuries. Even in hs statement under Section 313 Cr.P.C. he has not explained as to how Budhni Bai sustained injuries, on the contrary, he has stated that he is innocent and has been falsely implicated in the crime. Hence, the accised has failed to discharge burden which was on him. As per the evi ‘ce of Dr. Janeshwar Singh, he conducted postmortem on the body of th deceased, there were injuries on temporal region and face, she died on ccount of haemorrhage and as a result of shock on account of injurie Therefore, in View of the above, it is established that the accused as in the house when Budhni Bai sustained injuries but he did not explain s to how she sustained injuries. As per the evidence of doctor, cause of d ath was on account of injuries on the head and the death was homicidal in nature. The conduct of the accused is also relevant because as per vidence of wife of accused Nanki PW-5, as per evidence of PW-9 Shyam al and PW-10 RamLal accused was in the r habit of quarrelling with wife nd mother-in-Iaw. His conduct after the commission of crime is also re evant because he did not disclose anything about the injuries sustained y Budhni Bai. ln the circumstances, it is established that the accused author of the crime in question. To this extent, we do not find any ille ality or infirmity in the judgment of the trial Court convicting the accusedf r commission of crime. P.T.O. d n s. s XI—HC-78 mm,m,m Wm"ooo 0.0.0 000 .o.o..oo a1 200 mm(W) WW%‘WW mmwm “54" éswm Learned counse! for tha appellant further submitted that from the evidence available on record, the prosecution has not been able to establish that the accused ass‘ aulted the deceased with intention to cause war Singh (PW-7), who conducted post— mortem. has not stated that i ‘uries were sufficient in the ordinary course of nature to cause death. V3 On the other hand, I arned counsel for the State/respondent supported the judgment of the rial Court. £ lt is admitted position hat the doctor who conducted postmortem has not statedtthat injuries nd on the head of the deceased were sufficient in the ordinary cours of nature to cause death. Even there is no evidence on record to establsh that the accused while assaulting the deceased had intention to cau e her death. The injuries were on temporal region, on account of that th re was haemorrhage, even there was no fracture, therefore, we are of e considered opinion that the prosecution has utterly failed to establish that the accused assaulted the deceased with intention to cause her d ath. However, the manner in which the accused assaulted the decea ed with Lathi (Genda) on temporal region the accused was definitely aving knowledge that by assaulting the deceased with Lathi he is likel to cause death, therefore, knowledge can be attributed to the accused, s such offence against the accused under Section 304 Part-ll l.P.C. wa made out. Therefore, conviction under Section 302 of the l.P.C. cann tbe sustained. ln the result, the appea of the accused/appellant partly succeeds. \ Conviction and sentence im osed upon the accused/appellant under ‘ _ Section 302 of the l.P.C. are set aside, instead thereof, he is convicted P.T.O. her murder. Even Dr. Jane h u \ @ XI—HC-78 ’ 3aW, Wm; Wat ‘ Wm Q”4:..”?..LH1E.... W 200 mmwhwr) WWW 4 WW§W®WA W mmmm _- Cir éswanw under Section 304 Part-H of th e I.P.C. and sentenced to undergo RJ. for 5 years. It is stated that the act used is in detention since 9‘" April 2004 till / date therefore he shali be entitled for set off of the above detention erlod against the sentence Imposed upon him. ///i/ K Sdl- ’/ , L.c Judge BHADoo SdgA MISHBA ‘t\ ‘l D Judge w' ‘HBEND w w i v r ’ WW / i\