^ •^^T SI-^SHZS—on, I tteder Section_<S 02 ^% -s^-^By ^TWT <3T^r, [<^\<b ^^riX. ^—^.-<^~ SZ27£-^25^^ It is explaioed to tbe prisouer that if he states or wishes to be represented by a legal praetitioner fhe Appellate Court will not proceed with the base for se¥(ga days unless thelegalpractitiQner appears If the legal practitioner does not appear within seven days he may be beard at all if legal practitioner the coUrt npy proce^ed at once with the case and will not be obljged to give a bearing to ^^legal pi-^ctitioner who should appear. 2^?f7s 1. Date of application for copy of Judgement.- ~5;CTT«r sg^/T^W 'o %;?6 ^c7 -T^rte-^.?.76;5y- •5>^jn^? s-i'3''9 2. Date of which copy received :- NG 3. Date on which appeal sent :- ('•>- s>- 3T 4. Whether the prisoner wished to be represented or not :- Yes / I^o. '"srrs^fr -.^~sn &~|Q -^Ts-sr No. 48 Continued in Name rnAi- Jail No&< .^•"•KfKp^si^eT 1 Dated ~J.—~Z:^T Forwarded to the CHIEF JUDICIAL MAGISTRATE -Tft^a-RL tegether with a copy of Judgement or order passed in the case for favour of '-^rnsmission to theproper ApplleateCourt. t ^^ Su perinteRifict4Ceritral ^Elist^Sub-Jail. I DaieofreceiptinC.J. M. 1 Date of receipt ofrecord to accompany. Memo ofAppeal of the Appellate Court. |No.___^>^^_._ dated IPorwarded to the. ^ t-tSf^l^ ^ftUtf-f/ ^ s&——' J '. R. MAGISTRATS wsf. '^^.^ ^r\^ ^S;li S^*-Q"tl^ ligate 6&Urt ^ XI-HC-22 -g^f ^ild.l^, !9^WW, WVIW^. 3'I^I'^t s&^s ^i^i'^.'^fitT ~!»^'t*-^:1® ^^J.^fi^ 3ii^¥r's^Twate Division Bench: - Hon'ble Mr. L.C. Bhadoo and Hon'bie Mr. Dhirendra Mishra. JJ. 5-1-2006 Mr.R.K. Jain & Mre.Kiran Jaifi, counselfor th®appellant. Mr. U.N.S. Dso, Additional Ffublic Prosecutor wjtti Mr. Akhtl Mishra, Panel L^wyer for the State/responde^it Heard. , Oral judgment. By this appeal under Sectioiji 374 (2) of the Cr-P.C. accused h4advi Joga hgs questioned fte legality 4^ Judgment of conviction and order of sentence dated ^h August, 1996, Judge, Jagdalpur, in Sessions Trialj offence under Seciion 302 ofthe i.P Hirma & Kawasi Bhime, sentenced h ^pffwiFi i?n?if 'q fe^f <F-«-»!< i? 3ii:»Tti 31Tt?I ist passed by ihe 1°' AddiConal Sessions No.134/94, whereby tearned Additional Sessions Judge after holding the ac|3used/appe!iant guiity for commission of C. for commnting Uie murders of Kawasi m to undergo imprisonmentfor life. The prosecution case, in bri^f.is that Wacham Musa informed the Statton House OfRcer, Police Statioh: Bedrethat on 3d* Noveraber, 1993, when he was at his residence atabjout 8 p.m. the slder daughter of Kawssi Hirma namely, Hungi, came and ir|formed him that her father and mother have been murdered fay Madvi .jioga with an axe. On hearing this information, he aiongwitti Village P^tet Maiji Masha went to ttie agrffiultural fietd of Hirma and saw that the bo^Jies of Hirma & Bhime were lying, Tati Hunga was sitting there warming hiifiseif from fire, and he ssw in the light of fire that there were injuries on the |ieck of Hirma & Bhime and blood was oozing out of ttie injuries. He catte(p two peraons to wateh the bodies, as it was night and the next day morriing hesent village Patel Majji Masha & Tati _-^ *M~. *< ?1f . ilvw fS Xi-HC-22 Bli 3i5^TqiT •M?73?I^I %iiwai?ti •s^'^piRra, eifli^'iis, 'feiray ...^A.^^32 si^iwngT'gfet -'s. wfe'in wa? •?'fe'A-{S^RSTC ^'afigHsnt^ Partchas, Joga to call Chowkidar Sendra Jair^m were shown to Jalram, as by that forest route, nextday morning Majji| todge the report. On receiving this rsport, th^ No.5/93 under Section 302 of the IJ where after giving notice to the Hjrma Ex.P-11 and Panchnama of| prepared. Under Ex.P-4, plain so| possession from the place of possession under Ex.P-5. White irj gave memorandum Ex.P-2 regardi^g oifence, the axe, and same was ta i of the deceased were sent for Heaith Centre, Budni, where Dr. on the bodies of Kawasi Bhime mortem reports Ex.P-13 & P-14. After completion of investigapo! of Judicial Magistrate, First Class, to theSessions Judge, Jagdatpur,| Judge receiveti the case on The (>rosecution in order t4 examined eight wfltnesses. learned Additional Sessions Judge he denied the presecution eyidence] is innocent, he has not committed Bhime and he has been falsely ii i, The bodies of the deceased psrsons time night was already set in and beinfi Masha & Chowkidar Jairam weressnt to 5i*iii a investigapon transferlforfriai Statehient Stettion House Cfficer rsgistersd Crime P.C. and left for tt»escene'of occurrencs, Panchnama pf the body of Kawasi |the body of Kawasi Bhime Ex.P-12 were |1 and biood stained soii were teken into dccurrence. Utensils were tafcen into the potice custody, accused Madvi Joga the plae®where he kept e weapon of (^n Into possession under ExP-3. Bodfes p|ost-mortem examination to the Primary L^iii Bhartt (PW-7) conducteti post-mortem Kawasi Hirma and prepared ttie post- chargs sheet was filed in Ure Court Jjagdalpur, who in turn commiftsd the case Ifrom where tearned Addfflonal Sesstons establish charge agatnst the accused of the accused was recorded by linderSection 313 ofthe Cr.P.C. in wAtich ]appearing against him and statsd ihat hs 1the murders ot Kawasi Hirma & Kawasi (jnplicated. Learned Additionai Sessions J—___ XI-HC-22 ~s^ '^WM^, '^ftwre, 'fen'w^ .&>,.a..a<? feTi^T' sn^i'sii fS'tiai'311^1 si^i^ •aT^a sn^iis^fiw^fta ^iFfeqFf TipRiS ^'fetZi"tiSR^T i; sifigH-si^r - Judge after hearing the argument^ of Additional Publte Prosecutor and counsel for the accused convlcted afid sentenced the accused as mentioned inparalofthisjudgment. | Learned counsel for the appelfant did not dispute the fact ofhomicidal nature of the deaths of Kawasi Hirma) & Kawasi Bhime. Dr. Sunil Bharti (PW- 7) has stated that he conducted po^t-mortsm on the body of Kawasi Hirma and his report is Ex.P-13, he also |K>ndueted post-mortem on the body'W Kawasi Bhime and his reportis E»|.P-14, and the nature of the deates of Kawasi Hirma & Kawasi Bhime wejre homicidai. Tati Hungi (PW-6) who witnessed thecrime has stated that]accysed Joga attacked Bhime & Hirma wtth the axe. Therefore, ih view of th^ evidence of PW-6 Tatt Hungi and PW- 7 Dr. Sunil Bharti, it is sstablished ttjatihe deaths of Kawasi Hirma & Kawasi Bhime were homicidal in nature. Ks far as the invoivement of ttfe accused in coinmitting the murders of Kawasi Hirma & Kawasi Kiime i^ concerned; jearned counsei for Uie appeilant argued that PW-6 Tati Hur|gi has stated in her evidence thatatthe time of incident deceased Hirma wa4 consuming liquor, whereas, as perthe post-mortsm report, no liquor was|found in his stemach, thersfore, thte witness cannot be considersd as eyjewitness. In support of his arguments, ieamed tounsel for the appellant reii|ed upon the deeision of the Apex Court in t'ne matter <rf Moti and ottiers v^. State of U.P. reported in 2003 SCC (Cri) 1821. Learned counsel also 4rgued that theinddent is said to have taken place on 30th November, 199^, whereas the reportwas lodged on 2ml December, •19S3. the delay has not|been explained properiy, therefore, ttie accused has been wrongly convicted| He ateo argued thst from the evidence of PW-6 TaS Hungi it has come oi^ record that deceased Hirma and the accused botti were consuming tiquoi|, on some point they started quarrelling IJM *^~ • •» .__sa_HCL_nrL XI-HC-22 311^1 ^iT •f^IR; 311^1 ?^fe"H)ta •3-iq ^|i4!d<i, dT)Syll<»,^ (^.fi.m^ an^i^giwgfta -1+ •TOfe'iH tIItRTf •? fS^ Tl ^sipmsn^t and in the ^eat oi" passion, in a sudd^n flght, the accused atlacked deceased Hirma whiie he was under intoxicatioi|i, therefore, ine case ofthe accused is covered under Exception IV of Sectijsn 300 of the t.P.C. as there was no intention to cause death. For this pu]rp6se, leamed counsei piaced reiiance on the decision of the Apex Court in ^ie mater of Didar Si"gh vs. Stats of Haryana reported in 1893SGC {Cri}7|25. On the other hand, learne<( counsei appearing for Sie State/ respondent supported the judgment of|the trial Court; In order to appreciate the arguifisnts aavanced by iearned counsel for the appellant ws have perused the ^vidence available on record and the judgment ofthe trial Court. As fer as the question of dei^y in iodStngttisF.LR. is conce'med, F.I.R. Ex.P-1 was iodged by Sendr^ Jairam& Waeham Musa. PW-2 Wacham Musa has stated in his evid^nce that the report Ex.P-1 was iodged by village Kotwar. Perusai ofthe rep^rt Ek.P-l shows that in ttie report itseif it has been mentioned that the incident took place in the night of 30-11-1993. the daughter of deceased persons nayiely, Hungi came and intormed to the Sarpanch of ihe village about the inci<(snt. On receiving tfts information, ths Sarpanch along with Hungi went to (he ptacs of oceurrence and saw ths dead bodies of Kawasi Hirma & Kaw^si Bhime. .Thereafter, ihe Sarpanch cailed Madvi Ayatu & Madvi Nanda fro^n the viflage and asked them to watch V bodies. Nextday morning he c^lled Chowkidar Sendra Jairam from viitage Kerpese and he again went a4ang with the Chowkidar and apprised him about th6 dead bodies, by fliat tini^ it was evening, as fte road to Police Station was gosng ttirough a foresl ^r®aand tte Police Ststion was at a distance of 20 kms., fcerefors, Jairam|& Wacham Musa were sent to lodge the report on the next day mornin^ i.e. 2-12-1993. Therefore, in our XI-HC-2; ,feiray sn^'sff ft;IW .331^?I s»>iilti^ffg , .^.fc.^.^ 31'tB'ronw^ifei --5-! wittiout ^ny le^rned •mortelm corteerned, •<au considered opinion delay in reasonabiy. Moreover, nothlng has| Tati Hungi daughter ofthe decease<j Sendra Jairam that the delay was accused. In ft®cireumstancss, thej for the accuseci/ appejiant is As far as the argument of js no indication in the post- stomach of deceased Hirma is daughter of the deceased persons, the accused and deceased Hirma, Ih' mortem report, there is no mention| tiquor was present !t is adffiitt^ii committed in the evening of 30 was conducted on S-12-t993, mer^i conducted. After five days, it-wa^ alcoholic substance was present inj found in the stomach, is sent for we do not find any substance in accused/appellant. The facts of ttie| in the said case.the point was ttiat| cteath, whereas, as per the post-m|3 stomach ofthe deceased and the Now, coming to the questio^ intention to commit the murders concemed, it is also true tfiat as accused and deceased Hirma bothl lo(<ging 1-1 I—t tl -^—-^-..Z_^J~_ ?iN?fTl^'WRlf •? fe^t ^? aipOT snt^ Wvembet, the F.I.R. has been explained come jn the cross-examinauon or PW-6 persons, PW-2 Wacham Musa & PW-3 c^used just to cook up a case against the argumsnt advanced by tearned counsei merit. • i^rned counse! fc>r flie appeUant ttiat there report that iiquor was found in the I, it is true that M/V-6 Tati Hungi, lin her cross-examination has steted that Ijier father, consumed Hquor. !n the post- that in the stomach of deceased Hirma faCt 'y^at ftic cfini^ in ^iu^SJors wss r, 1893, whereas the post-mortem after fn/e days, the post-monem was difficult to detect visually whether the jtbe body unless the material, whteh was examination. !n view of the facts, argument of tearned counse! for the |case of Moti (supra) are distjnguishabte. | e deceased took dinner just before the report no food was present in the o^t-mortem was conducted very next day. that the accused was not having any lofKawasi Hiims & KawasJ Bhime is the evidenee of P»V-6 Tati Hung! uhe consumed iiquor and durihg Uiat pefiod —J3iifa^___ mer^fay chteff'ical <he mbrtem po^t. p^r Bii XI-HC-22 -g^r •3(p[RPI, 'g^flTTTe, ftcfiyy ..&. :.R..:m^.'32 3IT^Iq;T 1?;1W3!1^] sh*4i<4) ^fOT sn^i ?Israr ^ifei ^ alteroation took plaee between ttie ^ccused & deceasai i-firma,' and tiis accused afiacked Hirma & Bhime wtf) the axe, as me result of which both Htrma & Bhime died spontaneously. gathered from the nature of injuries injuries were inflicted and natureof ttte weapon used by tfie accused in the commissiori of crime. PW-7 Dr. Sunil Bharti has stattd in his evidence that on examination of the body of Kawasi Hinna he notic^d that there was an inciaBd wound in the size of 3" x 1"x 1" on the head, ari in the size of 3" x 2" x 2", the brain ma and a compound fracture of temporal Bhime, he noticed one incised wound 1" x 1", an incised wound on the occjiRitai bone in the size of2" x 1" x 1" brain material w@s coqiing out ofthe the temFioral bone, bpne of the skult of the occipital bone also. It is admittsd position that the the offence. It is true that the doct4 injuries were sufficient in the ordinary] qiN^q^ TiTqsjS •?-fe^•^(^re '^^rcmsntg The intention of the accused can be inflicted, part of the body where the incised wound on the temporai regton [erial was coming out on accountof the injuries, an incised wound below the 1+cnporai bone in the siz®of 2" x 1" x 2" bone. In the post-mortem of Kasrasi n the temporal bone in the size of 4" x jiead, ttiere was compound fraeture of jras depressed and there v@s fracture accused ussd the s's for committing tr has not given ths opinion that the course of nature to cause the deatfi, but from the nature of the injuries, to a|certain extent, ttie Court can also form opinton when ttie injuries are apparei|itty serious in nature. In the pressnt case,the accused used the axe as a wjieapon of offence and he attacked wift the axe with such a force that ths sku|ll bones of deceassd persons Kawasi Hirma & Kawasi Bhime wers fracttirad and brain materia! came out. Therefore, it can safely bs said that th^ nature of injunes inflicted upon both the deceased persons were so seriou{> that those injuries were sufRcient in ^~\ • ' ~^^ ^s^ - XI-HC-22 -T^^PTRPI,'satwre, feirey aiTOf^l l^lwanlRt aTRWgfia 3BB!BTI Soma WWiT %NI<*> ?r "cra^? .^..^.JS^ff^ -299- (cl'b^il""." 31)^1 ^giaiR^Hf^I 7 ^wl^'fl-l llltraf'? 'fe^t TFilt^K i? 3if?m an^! the ordinary course of nature to cau^e death. !n the ciroumstances, looking to the weapon of offence used, natui^ of injuries inflicted and the part of the bodie? chosen by the accused whei|e the injuries were caused, it indicates that the accused was having intentioit to commit the murder of Kawasi Hirma & Kawasi Bhime. On facts, the jud^ment of the Apex Court {Didar Slngh (supra)} cited by tearned counseljfor the appellant, is distinguishabie. Moreover, Kawasi Bhime, the lady, jn any way had not quarreied wlth the accused and ftsre isras no r^soh for ttie accused to alteck her so merciiessiy with a lethal weapon iike ^cce. PW-6 Tati Hung has stated in her evidence that the accused murderedlher father Hirma & mother Bhime with e axe. Ths accusad attacksd heb- father with the axe on his temporal rsgion, as a resuit ofwhich he felt d^wn and with the axe he assaulted hsr mother when she was trying to interv^ne, he assauted her mother ttrfce with the same axe and corresponding inj^ries were found on the bodies of the deceased persons.as steted by this iwitness. Therefors, ere is no rea&on to doubt Uie presence of this witnes^. She has categoricallystated that her parente were steying in the agricultur^t field in a hut msant for sheter atthe tims of watching the fieid and that hut 'jvas visible from thair hous®. fn view of the foregoing discu^sion, we do not find any illegality and infirmity iri the finding of the frial Ccjurt. The appea! is without any merit, sameis iiabletobeclismissedanditislherebydismissed. Sd/- DfflBENDRA MISHRA Judge Sd/- L.C.BHADOO Judge [•qt^^W!