^.^fy^' ;T^H/5^ .T «II-189/(Jail) C.J.P.R. 11/94/2,000 CF0000059482 APPEAL OF PRtSONER .ft ^"A(Crliring^ >•••.••••••^.';.T»»••. ••^ •^-^••^>».••••€•<•<••••••iNanie •^A»* •»••^•(•••.•••y&'^A"*^**?*•? •.•s •••••••••••-^ ••••••••• Father'sname ...^.^^y^.^....,^^.y^.^...^^.^^.^.^^^^.^\....^^^^^^ Residence.^^^.^.^.^.^^..^.^.^.^.^Age .....^.3^-^.^.............—......-<...... • •••••• • »f~\' • & " "y* •*•. •••••••••. Sentenced to •—,., ...C^,^<^.. .<• .^, .,.,.^. •A,,....••..•••On .. .•^-i.+^. i.-( \^\^^%^xqv<-v'" ^" i l^ i ^ ^ Under section ...3,.^.^...^....^.^^.... by^.^..^.^.^^y^.^^y<^^v^.^^ It is explained to the prisoner that if he states or wishes to be represented by legal l practitioner the Appellate Court will not proceed with the basc for seven days unless the legal practitioner appears . If the legal practitioner does not appear within seven de^ he may notheard at all . Ifihe prisoner states that he does not wish to be repre- sented by legal practitioner the court may proceed at once with the case and will not be obliged to give a hearing to any legal practitioner who should appear . 1 2 3 4 Date of Application for copy of Judgement ... ... .t>.|.^ V.&^... Date on which copyreceived ............... .^^|.^^j.^^rr. Date on which Appeal seat............ .. ...^.........\.|.^^.... ... . •^' Whether the prisoner wishes to be represented or eot - Yes / No No.... ...•f^l&^..?-:.^%................. ...... Name^.^ ^^.^^.^.yyF^.^...^^^^ c-* "^ in...... »......^^.^^^.,^....•..^.... Jail ...^.^^•^•^••^^^^.^....•.•....••......•—•..••• No.......^...7—•.••••....(.l^-jDated................... ..f99L.......^.///..f^. Forwarded to the €HIEF^bTOCIAt-MAGISTRA'EE^l |b?..^^.-?..^. .^^J.y;lx^.s| ^ " ^ ^1<\c<^i togather which a copy of judgement or order passed in the case for favour of traAs- .^-^. Superintendent ••••^.^ .^....•..j'Siyt^ •••...••••*-i.5..».. mis&ion to the proper Appellate Court, <^ 0^3^ (^<>\^^j2.{^{v^t /: <-1 _5. ^..•U.'^js^ Date of receipt in. office... ^.^^..:"I....^....i:l:J^ Date of receipt record to accompany the ..)- Q^ ^,'^/ 3& MemoofAppealtoihe Appellate court ........ .............^^^...^. .-^l^YI -;',:y No Dated- TQO Forvvarded to the Date ofreceiptinAppellateCourt .| ^a rs^ st MaBgz Prtdssli •yAEiXCPUlt"••'•""•• -j O'^Ni^N ; /- i^t. Me.^^M.^^l—.— RtoeptCtetl-— Wt^ Cwrt»liriidpw •-q-3 • •-•••••^•^••.••*'•—•••••^»«« '. ._ .£^ '^'t.s:y^^'^ -.-.;'.t.t.sA.....l. w; ( P.T. O. ) "Y.-, .'"^" •^•-. •"-f'tc^. -^r XI-HC-22 ^"^ ^[pff^r, '^t^i^, tN^TRTy ^•Yc~'/e- ^im^n^w^,.^.::&-.. -..l^l^ Shri Ashish Shukla, ^dditional ^hatia, Panet Lawyer for the State/re 5-12-2005 Miss Sk2ngeeta Mishra, counsel ^or the appeliant. public Prosecutor with Shri MP.S. ^pondent. 0ra! judgment. 8y this appeaj 1+irough Supe^rintendent Central Jail, Raipur, jxccused ^uddu © Rampratap has questioned the !e9ali'ty of the judgment |)f conviction and sentence dated 7-10^1995 pas^d by fhe 7th Adclltional pessions Judge, Brlaspur, in S.T. |^o.l 12/94 whereby the learned ^dditional Sessions Judge after holdi^ig the accused/appeJJoint guiity for fhe commission of offence under |Section 302 olf» the I.P.C. for |:ommitting murders of Jharokha ^r\d ShyarnlaJ, sentenced him to |jndergo imprisonment for life, The caseof the prosecutior|, in brief, is that on 25-12-93 ^ompfainant Bajrang woke up a-t- 3a.m. ^snd after finishing the work at his ilesjdence, he went for work in his ^arden. At that time, his uncle ?hyamlal went towards the river for taking bath and 15 minutes icreafter his father Jharokha went towards the river for takihg bath. [Tfr^^R^ 'iq^r' 3?^i^r fe^sni^ ^Rl^W^T 3n^T,^^H^R^f^T 'WlfeFft^ -qFq^f -^ 'f^^ ^T^K '^3^THS^T >iyiSIONBENCH:- . 1 , ^ON'BLE MR. L.C. BHADOO AND ^ON'BLEMR. V.K. SHRIVASTAV^ JJ. @> XI-HC-22 ^^ ^I^Jd^, ^Tll-H^Ko, I°l<y11^y 3?T^C 'qiW Na^ctt ^qt^**<*'*******<*"*""<"**********'*<*TF^ 20° •f^^T' 'STT^T'^T . R-li<=h '3T^T 5h^i<^ ^f^a 3:n^r ^^na^ '^f^r •^- At about 6 a<m. his brother 6eetal informed that Jharokha and Shyamlj: went towards the site, he ^aw that th|< on the road. There were injuries on ^ and the body was lying in thepool of Shyamlal's bodywas lyin9 oind there and blood was oozing out of it. Gn th^ p.m. accused Guddu was telling him relations with his mother, thereforej outrage the modesty of the family the F.I.R. (Ex.-P/lS) was registered i(PW-l?). He ieft for the scene of oc^ of the dead bodie3 of Shyamlal onc| respectiyely, He took into |from the respective places of in the poiice custody, the accused/apj regarding the place where he kept |that, Tabbal was recovered under Ibbod. The dead bodies of postmortem examination to the [where Dr. Habib (PW-7) conducted pos^ssion the occurnence cbl^Id<Li1-< TTFi^ff "^ 'fe1^ iPsK^K '^'N^m^n^i 1- came to him and on enquiry, he il have been murderecj. When he th^ dead body of his father was lying is mouth, cheek and parietaj region Iblood. At some distance, his uncle ^ere injuries on the head and thigh previous day LC. Friday at about 7 [that his'uncle Shyamlal has itlicit he will murder Shyamlal and he'will m^mbers of Shyamlal. On the report, |?y Head Constable Mahendra Singh oc^urrence. He prepared Panchanama Jharokha under Ex.-P/3 and P/4 blood stained soil and plain soil under Ex.-P/5 and P/6. While )(3eliant gaye a memorandum Ex.-P/7 [abbai (Spade) and in pursuance of Sx.-P/S and same was stained with and Shyamld were sent for Health Centre, Takhatpur t^e postmortem on the dead bodies [Tft^ ^x Jharotkha Got^munity ^ XI-HC-22 ^sf "^n^^R; ^iTCFT^, ^TRT^ 3:?T^T 'q^? 'q-ra^I^H§<^ 'M 200 3^^1'^T 'f^ri^^^R^T '^Rt°F'^fi?f K- ^FRf^h iTR^rf °^fe^ i^r^R ^-^ti^R 3:iT^T of Jharokha and Shyamlal, He pr€p<|ired the postmortem reports of the dead bodies of Jharokha and Stiyamlal under Ex.-P/15 and P/14 I. respectively. The clothes which we^on the dead bodies of Jharokha and Shydmilal were taken into poss^ (Ex.-P/20 and P/21) of the place | recovered artictes were sent to Bilaspyr from where report Ex--P/2f was received. After completion of 1+ie investigation, charge sheet w| Magistrate, 1st Class, Bilaspur, who Sessions Jud9e, Bilaspur from wh^ Judge received the case for triai. The prosecution in order to ssion under Ex*-P/17. The site plan of occurrence was prepared. The the Forensic Science Laboratory, ss fiied in the Court of Judicial in turn committed the case to the re fearned 7th Additional Sessions establish the charge against the accussd/appeilant exam.ined 16 w^nesses. On the other hand, the statement of the accu^^d was recorl in which he denied the prosecutio ied under Section 313 of the Cr.P.C. n evidence and stated that he is innocent and he has been falsely trr^pljcated in the crime on account of animosity, Learned Additional Sessions \ of learned counsel for the part accused/appellant as mentioned in p€|ra-lof this Judgment ^udge aftBr hearing the ar9uments |es, convicted and sentenced the [Tft^ ^Psl^l XI-HC-22 .(@ ~S^ ^yqi^q^ ^ft^T^, tN^rey '3i!^r i?^^ ^ra^n' '^w^ -M 200 "^^8T" ^T^T^T fN^"^Ti¥r '^Rwe^i b:- -\- ^T^f ^CTW ^f^ ^ ^RS^h ^R^f ^^f T^R ^^f^eiT^r The factof nature of the d )micidal has not been disputed xused/Gppetlant. Apart from that/ |abib and from the postmortem r leoh-h of Jharokha and Shyamlal as by learned counsel for the from the evidence of PW-7 Dr, sports Ex.-P/14 and P/15 it is ejstablished that the death of Jharokjha and Shyamlal was hotnicidaf in ti lature. Now, comin9 to the involvem4tit of the accu^d/appellant in |ommitting murders of Jharokha. oir) vidence in this case. PW-8 Ramadha| infortunatety, this witness turned h^stite. There is no other ocular •vidence in connection with the crime.iTherefore, the whole case of 1+ie irosecution rests on the circumstantial (1) Motive; In the previous evening ti^ therefore, he should be id Shyamlal, there is no ocular was produced as eyewitness but evidence which are as folbws:" e accused/appellant said to Bajrang (PW-5), son of ^ceased Jharokha, that his uncle is having illicit ^elatjons with his moth'er, idvised. He was also openly (2) axying that he would muj'der* Shyamlal and he. would outrage the modesty of ipie daughters and wife< The accused was seei|i nearby the place of occurrence by PW-6 Mon^ara Bai on the date of the occurrence with Tabbal, v^eapon of offence and; [Tfr^y^ XI-HC-22 'STT^T'^T 'f^R'^n^T $^+<T^ 'v lil ' OP 's^t ^\^w^ ^•^\w{<o, F^w^y. 3^?T 'q=ra? '^Tfl^IT'SR'tfraT """""""""*****'<**'*****^FT 200 "f^ST' 'STT^T "^TT^T ^rftTT (3) The weapon of offen pursuance of the met accused. de i.e. Tabbal was recovered in ^orondum Ex.-P/7 given by the In order to rest conviction as per the sett'led principles bid matter of NESAR AHMED VS. 2001 Supreme Court- 2416 i.e evidence, before the Court can n that circumstances from which an been established by unimpeachab that all the circumstances put n^tture but also complete the cha| guilt of accu^d and are not c< consistent with the hypothesis Now, we shall proceed to prosecution as to whether the pr| charge against the accused basecj (1) As far as first-.point is co| report at the Police Stati<|i in hisevidence has stated refations with the mo1+i< wi^<fli tnH^f^ 'fe^S <r3i^i< ^ 5Tp<TTT 3TI^T Ibased ort the circumstantial evidence, |own by the Hon'ble Apex Court in the ISTATE OF BIHAR reported in AIR in a case based on circumstantial icord conviction, it must satisfy itself inference of 9uitt could be drawn have e evidence led by the prosecution and ^ogether are not only of a conclusive n so fuily as to unerringly point to the :a|3able of dny explahation which is not of 1+ie guiltof the accu^d. lexamine the evidence adduced by the >secution has been able to establish the on the above principle. — tcerned, PW-5 Bajrang, who lod9ed the and is also son of decsased Jharokha, 1+iat his uncle Shyamtal was havin9 illicjt of accused namely ftdm Bai. The [^ ^r^ 'il^ii®^^^iss!iji^^BB^^8^B8^H^^^^^^S XI-HC-22 ^TT^T'^T f^rii<^ ^TI^T 5^^iicb <^fia ^TT^T ?^n^ '^fin — ^ ~3^r ^ii<4id<Li, ^Til^Ko, f®«ni^^< 3?T^T ^^ ^IINCII 9b^8<^' "*<"'**:**'"^*<***<t*"***"*^I^ 2<N) 'f^^T' (2) accused himself asked him to evening of the occurrence the that he woutd murder Shyambl of the family members of Shyc modesty of his mother. Th is F.I.R. (Ex.-P/13) which was the commission of the offence-i not been cross-examined on hsm to warn Shydmbl; on ttie crying that he would kilt examined on other parts. made known to the potice in cross-examination, this aspect there is no reason before this the above aspect. Therefore, of the accused for the established. tod^ed this Shyarr^lal Mordover As far as the question to the with the weapon of offence occurrence just before the Bai has stated that on Saturdak CM<Llfol<fl'1 'RW^ff ^ f^st <P»1<^1< ^'3rf^H3?7^T advise Shyamla}. On the preyious accused was crying in the village or he would outroige the modesty tmla! becau^ he was outraging the |act was mentioned by him in the Gt 930 p.m. within 3 hours of Apart from that, this witness has tjiis aspect 1+iat the accused asked ^revious day evening he was openly I, Of-course, he has been cross- \ this part of the evidence he +he FJ.R. within no time. In the ms nof been questioned, therefore, ICourt to disbetieve this witness on the above evidente, the motive of heinous crime stands fhom corrtmissson leffect that the accused was seen in the vicinit/ of the place of c^mmission of crime;PW-6 Mongara morning after waking up when she ['cfr^"^Rl^ XI-HC-22 '^5E[^l^l<rt<LI, ^Tl1wi^/f6)1^l^ll< ' , 3?T^I1^T 'f^Fri^^T^T 5^^i<=h ^rit^ 31T^T "q^? 'w?w%w^' 200 •^?<r ^¥Ti^T^R'tTft^r -7- was cJeoining the courtyard, she ^Flffri4ll 1TO^T? ^ ft^ Tf^i^R '^3?f^Hw^r saw that the accused was aoina towards the tempte carrying Tafa^bal in his hand. Thereafter, she went to the house of Deewan -f|or fetching basket. She stay&d there for some time and Wife <jif deceased Jharokha called the Kotwar. She was saying that son|eth ing has happened. The Kotwar and the wife of Jharokha were ^oing towards the river. In para-4 she has stated that when she M this witness narnely Mongara Ba from point No.4. The accused| Tabbal and at point No.5 tenj |as 90^9 to the house of Deewan for fetching basket, the accuse^d was standing on the main road near 1+ie temple keepingTabbaI ^spade), weapon of offence on the wall. After some time, she cam^; to know about the murders of Jharokha and Shyamlal. In th^ cross-examination, the defence has not been able to clicit anyt^ing which makes the evidence of this witness unretiable pr untru^tworthy. The site plan (Ex.-P/20) of the place'of occurrence prep^red by Patwari indicates that the bodies of Shyamlal and Jharokh4 were lyjng at places ll' and *2' and saw the accused carrying Tabbal was seen at point No.7 carryin9 iple mis existing. "TTiis map was prepared in the presence of )lAongara Bai. Similar is the map prepared by the 1.0. (Ex.-P/21) Therefore, in view of 1+ie above, it is establishect that -riie acci^sed was seen near the pla<% of + [Tft^ ^fo^ XI-HC-22 W^T^F 1<-li<=h 3TI^T. 5h^ict) 'H^a <S) ^^ ^ll^M^, ^TTt^^Ko, M<ni^^< 3n^r '^^K Nl^dl *Ni*'******<<°"***^t<t*'"*<**'"t<o**^T^ 20<) •^^ST"""""""""""""" occurrence just before th^ offence. (3) As far as third point is co has stated that on 26-12-9 <^l^t<n^lr1 'RTR^Tf ^ 'f^st ipsl^K ^3Tf^^:^^3^I incident carrying Tabbal'/ weapon of ^cerned, PW-11 S.L Kanwar, the 1.0.. , in the police custody, enquiries were made from the accused upo^n which he disclosed that he has kept Tdbbal in a hut in a conceaed condition and he can get the same recovered, which was recJuced in writing and based on the memorandum (Ex.-P/7) Tab^ai was recovered at the instance of the accused under Ex.-P/4 PW-16Radheshyam has also stated that 1+ie accu^d gave a me^norandum (Ex.-P/7) and got recovered Tabbal under Ex.-P/S which Therefore, in view of the cjibove evidence, Tabbal in question was recovered at the instance of th€J conclition. It is mentioned in thd stains on Tabbal and ^xme was ^ the F.S.L., Bilaspur Ex.-P/24 me^ with blood. PW-7 Dr. Habib has s1 1+ie body of deceased couid be ca^ Now, if we look into atl the| bears his signatures. accused frorh the hut in a concealed recovery memo that there wasblood nt 1^> the F.S.L., Bilaspur and report of itions that Tabbat wa5 found stained ated that injurieswhich were found on ised by Tabbal in question. 3 aspects i.e. on the previousevening the accu^d was openty saying t|iat Shyamtal is having illicit relations wit+i his motiier, therefore, he wi|l kill him. Healso asked PW-5 to advise [TT^'^fe^r ~T- XI-HC-22 ~3~oc[ ^ii^i<n^, '^rft^Fi^, i^TRTy 3n^r x?^^ 'mwn-ss-qra?' '^ 200 "f^ST" ^n^r'^T k^i5b 3TI^T ^^llch ^TT^ Barve ^'y^ cns^?<rs<fl-l ^i^l* •$ f^l- TJ^SK '^3?Tf^R^^r cd th s^ uncle about the relations with his) mother, therefore, motive for mmissiori of the crime was estdblish^d. Thereafter, on the date of e offence, just before the offence ten with Tabbal near the place of occ^ ^as committed, the accused was rrence and Tabbal was recovered the instance of the accused stairked with bbod and the medica! e^idence of PW-7 is to the effect tha|l b^ same Tabbal. Therefore/chain of t| ^ injurses could have been cc^sed ie circumstances is complete and p()ints towards the fact that the acc^d was author of the crime and t^iere was no possibility of his innoc^nc^ or involvement of any other pjerson in cnme. Therefore, the prosecution h^s successfully established the jharge against the accused/appejbnt |;ircumstantiat<evidence,as such findir^ <jiccused/q3pe!lant for the commtssi^ Srharokha is based on the legal eviderj based on the legal and clinchin9 ^ of the trial Court convicting the >n of murders of Shyamlal cuid ce which requtres no interference >y 1+iisCourt In the result, the appeal beir^g devoid of merit isJiabL^ to be ^ismissed and it is hereby dismissed. Sd/.. L.C, Bhadoo Judge Sd/- V.K. Shrivatava Judge [Tft^^Ri^