< C^.\3%Vl3'7 Xn.'!@, ^ail) C.J.P;R.1T/94/2,000 CF0000061684 APPEAL. OF PR1SONER vo.........i22.^ Father's narte ..., Naffle...,.......^^^^^ •ifw;j. .i^Cfi,.,;^ ^ '°¥ -CL ?/^y<5^- ^s-y^T^———•—--•••• Residenee.^^^^^^^Age ........-^y. Sentencedto..^^^^^^^0n.^.^-.^-..9^........-.^ Under section ....g,0).^...-g^^..^^^.., by :-^p^^..^^^^^^^r---^,^3^ ^>. It is explained to the prisoner that if he states or Wishes to be represented by legal j^.actitioner the Appellate Court will notproceed.with the base for seven days untess the legal practitioner appears .If the legal practitioner does not appear withih seven ^^_^m^npt heard at all. Jfiheprisonerstatesthathedoesnot wish to be repre- ' ~6y leg^l practitipner the court may pruceed at oncewith the case and will not be 'Q,Uigedtogi^eahearirigtoany legal practitioner wlio should appear . _ *• - .•' . .'' -'. -:.. - '• •'' '.. '. ' " .. . . "- ' •.•''• -• '" .4- ^ofJudgement 0.^;^.r ^^../.^^^LZ Da^ - .•-^^•i,.,-^vi./^y^El ...*.•./ijt^~. CS.T, t/^ 3 Date On which Appeal seat... . s?^0.."s..(3> .- .?.7L. 4 Whether the prisoner wishes to be represented or not -Yes / N6 No.... .....^°<.»'..^........i.^..;..^.........Name....^ ^.^^—^-r-,^. K^W^^r' ^"'""•^7%^-^7y Confined in ...(..^•^-T-r-^^--- Jail ••--^^y^-vy^^^-^^------- No.....^.%€>..........;„.:.....Dated..^?/:.^5:^..s^9*^.......:..:.~...^.X......... Forwarded to the CMEF JUDICIAL MAGISTRATE ..^StS^Kfi.-.........^......,,. to^ather which a eopy of judgement or order passed inthe case for favour of trans- :'rission to tbe proper Appellate Court. _' _ /1_.Z-_ __/i/~> \^ ^rTSTS'j-- f^o^~jrt^(^T- <;^-A>-S~/ SufeeriHTendent Date.of.receipt rn..^,3—k—^....._.. office..&^r^?3 / ~~^. Dalte of recelpt record to accoigf)any the M^mo of Appealto Ihe Appellate coiirt ...•^^^'..^..'^, .,,,^ A.iA/W ^•••^J-^yt^^-3»€^SB?^,^^^( D:a< *^ ..sa-i^"y-^i'»-2 (Sifreeei'pt-in:A@p?llate GouFt...^, -....;....-4. ...................^.. '-% —/^ t'-S"^*iSi','i*-aif'>:.:^v •.\'.~':^-6'"S-?-\-'r:*"^'':.-*-:-CfV*''. ;.. *<a8;W {»!».».-,S;-s—;a.a(^.1-. A^-X^ Dated s='^.?& ..fc-5^79 —J. ^-re'3-»~-—T' XI-HC-78 *TTq^TT a>*nct) 3^'siPTRpr, ffTfltf're, Rdiuy ^<^A.'3?J/a2..^200 3<1^1 4d* (yi^ci^sr) ^TI^T ^iT R-fi* tI8IT3TR?TsnilIo ^gTgTflfStTsn^T DIVISION BENCH: HON &HO| 'BLE SHRI L.C. BHADOO AND »<'BLESHRt DHIRENDRA MISHRA, JJ Appellant CRIMINAL AlpPEAL N0.1381 of 1997 Bhbkal Sai Respondent Shri Abhay Tiwari learned Shri D.K. Gwalare Dy.GA fi cjounsel forthe appellant. ^r the respondent/State. The matter is tisted on IA the case flnally at anearly date. Counsel for the appeltant since 12.9.1995, thereby he has| sentence and he is not in a appeal may be heard finally to objection. Thus the appeal is hear<( ORAI Per I..C. Bhadoo. J: N|a. 3058/2006, an application for hearing of sentencedated./l 9-6-1997 pas^ qiraf?pft^ BpRff ffte^ rfSresir ^arf^iTsn^r s. tateof Madhya Pradesh stjbmits that the appellant is in detention lcompleted more than 11 years ofjail posHpon to furnish bail. tam^s, therefore the Iwhich counsel for the State has no finally. .JUDGMENT 0.11.2006) This appeal is directedagaiitist the judgment of conviction and order (i • ^ed hy First Additional Sessions Judge, P.T.O. XI-HC-78 sn^rw R-ii* tIW3n^?Tsh*i *11*1CTI Stl*1|ct) •i-°i •<<i<iio<<, siTdtf'is, Ridiy^<. .^c^:^...^l.l..V.. ^200 3<l^i Ma«n(Ii^3^8T) S?tITW <Tf?ff3TI^T Raigarh in Sessions Trial No. 2S Sessions Judge after hotding the| 302 of I.P.C.has sentenced him 2. Thecase of the prosecuti^n when Udal wascooking food at with knife andsaid that he would on his stomach and neck. When the accused assaulted him with stomach injuries, the intestines from the scene of oecurrence. about the incident and Udal wasl where he himself lodged report Section 307 of I.P.C. was refi investigation and requested the | dying declaration. On the reques^ Agrawal- Tehsitdar recorded dyinb was admitted to the Governmetit sustained by \ym were examined | as many as 7 incised wounds ofy qipiWl^ wqcit'¥teil'TfSresre ^3tf^T3TI^T 2/1995wherebythe leamed Additional accusea appeltant guitty under Section > undergo imprisonment for life. is that on 11-9-1995 at about 7 p.m. |his residence, the accused came there kill him and attacked with knife 2-3 times l|)dal tried to save himself from the attack, )<nife on his hands also. On account of c^me out. Thereafter accused fled away Ct^oukidar Adhindas (P.W. 1) was informed |taken to the Police Station, Gharghoda E|x. P-13. Based on that an offence under jistered. Investigating OfRcer took up Executwe Magistrate for recording the of Investigating Officer, P.W. 12 Suresh declaration of Udal vide Ex. P-10. Udal Hospital, Raigarh where ttie injuries |by Dr. B.R. Banjare P.W. 10 who noticed stomach, chest and hands and opined P.T.O. -i-1 XI-HC-78 *ii*iyiisb«Tra» 3^''<<l<llcl<<,(9T(ltl'l6, Rldltiy Ac.%7:-.A..J?.?.L/.^ ^ ^200 3TT^?T tra^T (yil^<!|<<isr) sn^rw R-ii.* tpIT 3fI^?T»H roiIW H|?(T an^r «hi<ilci41-<HiinTffte'AiRi^K ^iarf^Han^T that injury no. 1 which was ttie right side of stomach was coming out, there was cut in However, duringtreatment Udal therefore, IVterg intimation Ex. P basis of which the crime was investigating OfRcer took intp blood stained soit from the place of the accused under Ex. P-6. Bajpai P.W. 17 and Dr.A.M. prepared in K.G. Hospitat, doctors the cause of death was to multiple injuries teading to was homicidal in nature. penetr^ting wound in the sizeof 4" x 2"x 2" on flangerbus, as his small intestine was (he intestine. Injury report is Ex. P-8. ^uccumbed to the injuries on 14-9-1995 11 was sent to Kotwali Raigarh, on the lconverted into Section 302 of I.P.C. po|ssession knife under Ex.P-4, plain and |af occurrence under Ex. P-5 and clothes P|ost mortem was conducted by Dr. S.S. Gup|ta P.W. 20 and the report Ex. P-12 was Raidarh. According to the opinion of the h^povolaemic and septicaemic shock due het|iorrhage and septicemiaand the death 3. After completion Of usualir(vi Courtof Judiciat Magistrate First the ease to the Court of Session^ Additipnal^^sions Judge receiv^d irtvestigation charge sheet was filed in the iplass, Gharghoda who in tum committed Judge, Raigarh from where the learned the same on transfer for triat. P.T.O. XI-HC-78 3TI^?T?iTR-<i* traT3n^rgi*iN7 *<i*iwi aiHicfi 3^ •*ii<4ici<<, (Stflu'is, (sictiuy ..<^?~.A..lS&i./A.'3. W1T 200 3<1^1 4»t*('i^t^si^) ?HITSITWfef3T1^?T 4. The prosecution in order accused appellant examined ir| accused-appellant was also which he pleaded ignorance and |to establish charge teveted against the all 22 witnesses. Statement of the rec<frrded under Section 313 of Cr.P.C. in f^lse imptication in the crime in question. Sessiohs 5. Learned Additional respective parties convicted an<( mentioned above. 6. We have heard Shri Ab}<ay appellant ahd Shri D.K. Gwalre, D^. 7. Counsel for the appellant was homicidal in nature. That Executive Magistrate has stated declaration Ex. P-10 before him. - K.P. Awasthi P.W. 18, in whj involvement of the accused and a P.W. 17 who conducted post death of Udal was' homicidal in •• / established that death of Udal wasl *i'iil<'<<fl-i mfictf ^ te^l' (fSRzre ^isri^crsn^T Judge after hearing counsel for the sentenced the accused-appellant as Tiwari, Advocate on behalf of the . Govt. Advocateon behatf of the State. ^ias not disputed that the death of Udal [apart, P.W. 12 Suresh Agrawal, the ]in his evidence that Udal made dying . Ijldal todged F.I.R. Ex. P-13 before A.S.I. i|;h he stated about dying dectaration, a^sault by him with knife.Dr. S.S. Bajpai m()rtem examinafon has stated that the nature. Thus in view of above, it is homicidat in nature. P.T.O. » -t*l XI-HC-78 3IT^TW R-li* I^TSn^T^Ich i^aiianiit «<W^ITSt»<1iq> 3^T ^ll^lcl^, ®Tn^'ie,IsiciKiy ^.C'r.A;13.^(/.f^.,.^T 2QQ sn^TTara? (^q^g^r) SOTW (Tli(r sn^r 8. As far as invoh^ement of 4' is concerned, counsel for the attacked by his son and wife an<jl in the crime. ^ccused-appellant in the crime in question ^ippellant submits that in fect Udal was the accused has been falsely impticated teslrned 9. On the other hand, supported the impugned judgmejrt ofthe trial 10. In order to appreciate appearing on behaff of the judgmentand the record ofthe fr tlbe 11. P.W.18 A.S.I. - K.P. report was lodged before him on 12 Suresh Agrawal has stated Executwe Magistrate on 12-9-" Police Station, Gharghoda of Udal, on which he went to obtained certificate from the dodtor statement and tbereafter he rec^rded stated that ac^used Bhokat asslaulted c»ii<<f<i41-iiiHCTT^'tei^'<Ri<<;i< ^sri^iTsn^r counset for the respondent/State Court. tl|ie arguments advanced by Shri Thwari apijiettant, we have perused the impugned lal Court. AWasthi (asthi has stated that on 12-9-1995 oral |which he recorded report Ex. P-13. P.W. ]in his evidence that he was posted as >. On that day, Station House Officer of him for recording dying declaration ]the hospital where Udal was admitted, regarding the fitness of Udal to give the statement of Udal, in which he him wiUi knife on his stomach 4 19195 requ^sted P.T.O. XI-HC-78 *II*ICTI Shwn 3^ '<ll't|lo<<, »Tnu'16,fsfdiy^ ..'=rK.^.i.^..)an.. ^IT 200 3TI^?TV^SK (t^t^Sff) BTI^TWf^-IHi n^T3TI^?TsbHicti WcITO;Bf?tT3;fI^T «hi<iF<-i<fl-i iiiMTiF'te^l'<Riwi< ^sri^ran^r times and the dying declaration |s Ex. P-10. Perusal of dying declaration Ex. P-10 reveals that on the fate|ful day When Udal was at his residence, accused came there, both of |them consumed liquor and thereafter accused assaulted him on stomfech with knife 4 times and then he fled away. The above dying declarati^n is further corroborated by the evidence of P.W. 1 Adhindas. P.W.5 Birsb, the wife of Udal also corroborated the above fact and stated that heil husband made oral dying declaration before her regarding theinjurie^ inflicted by accused Bhokal. There is nothing in the cross-examinati|on of this witness which makes her statement unreliable or untrusfritorthy. Therefore, from the above dying declaration Ex. P-10 given befor^ the Executive Magistrate and oral dying declaration gh/en before P.W. 1 \^dhindas and P.W. 5 Birso, wife of Udat, it is established that accused infli|cted injuries to Udal with knife and as per thedoctors' opinion, injuryNo. 1]wasserious in nature, because of which the small intestine was also puhctured and the same came out of the stomach. The accused inflicted 71 hands which shows that accused -. / Court has n6t committed any '•< injuries, 4 on stomach and remaining on attacked the deceased with an intention to cause death./therefore, we ai|e t>f the considered opinion that the trial illegality or infirmity in convicting the P.T.O. XI-HC-78 *ll*icn Sh*1l<h 3S^ '<41'i|ICI<l, ^xflu'IS, Rl<'ll«y .C'^.A.J.iS'./.^... W1[ 200 3<i^l Ma<*i ('pig^T) W^T ^T R-li* cWT •3TI^?T sti<-l ./"\ ^ SRirwtiferw^T •^^ ^^ -Sd7~~~- LC.Bhadoo Judge +wtc'i'ifl-i *iwCTTfftec^<Ri^i< SRari^iTsnSCT accused-appellant under Section|302 of I.P.C. and the judgment of the trial Court is based on legal evider|ce. 12. In the resuH;, the appeat b^ingdevoid ofsubstance is liable to be disirossed and it isaccordingly distnissed. •. / Sd/- DfflRENDRA MISHRA Judge P.T.O. -t