HSBB^i^ ^^i^® -Is? ^yKIM59/<Jail) >, C.J.P.^. 11/94/2,000 •/?^ ^ .... CF0000060874 APPEAL OF PRISONER fl^ion Bench (Cri No. Father o... .............^^^.^.....^... Name^^^^.............................-.. Father's name ^^^^,^.^^ ^...^.^^^.^ ,).^^..^.^^..^.......... Residence^^^...^.^.^^^^..... Age'.....^^^.............. ........ ........ Sentenced to 3^^ ^.^^.^^.............. On....^- /' Under section ...^.^.^...y^.:^^.......... by ^^..^..^..^.^.y^^^.^^.._y,.^^..^y^ ^(\ju)^ It is explained to the prisoner that if he states or wishes to be represented by legal ^actitioner the Appellate Court will not proceed with the base for seven days unless |li5e lega! practitioner appears . If the legal practitkiner does not appear within seven may not heard at all . Ifihe prisoner states that he does not wish to be repre- sented by legal practitioner the court may pruceed at once with the case and will not be obliged to give a hearing to any legal practitiocer who should appear . Date of AppKcation for copy of Judgement ... <-. ^ -y ;_$•••• Uate on which copyreceived ............... ...... ..^ ^l \^ ^ Date on which Appeal seat........... .................\.\^o.,f ... Whether the prisoner wishes to be represeated' or set-- Yes / No No...............3 y^^.^.................... Name._^.^.^..^p..^.^^-..^.^...... Confinedin ...... ......a.,..-^^..^...... Jail ....^.^^.-^^.^ No.....—..%ll.)........[-(-.'..-<?-} Dated.................. .. 199 J^....^../.^/..9.A>''.............. Forwarded to the CHIEF JUDICIAL MAGISTRATE.^.^.a.^^^^..^. ^^^,^,.,,.^^ tiigather which a copy of judgement pr order passed in the case for fav^^"^ ?ranSS ^ niission to the proper Appellate Court. Sunesteiaident •••••»»% ^ Date ofreceipt in... ..:..... ... ......^........ office'. r Date of receTpt record to aBc^mpany the Memo ofAppeal to ihe Appellate court .. '. -7. " >, tv_ "! '•-O u Q' ))• u ti." ! > t^ 3nly ' .?7 Kw.s^r 3) -r- t u K No ;:::. Forwarded to the ..-Dated ....................199.5^.-£?.....-........^..u O T-.t ll"3 b '•i's^ Sd CfflB't.^M'dhss i'?A J^,-B^L,PU?? .i.i.l. t'ate of receipt in Appellate/Coirt 3MQy ms:. ( P. T. O. ) ;!.KC-;?2 © Tsg •^|A|!'ntl, 'STftOTs, 'faciKi'y yn^^'i q^f 1'cHT?; 3?i^i' ^~-i:s-, <fi>^ j ,iaain; R . _Q^.^.:.2..l^./.'i^ an^TwHW^fN ':hl^[<?'i4ll tt!H<'lT ^ t^1^ ^srfiOTsntn DIVISION BENCH: HON'feLE SHRI L.C.BHADOO & HON'$LE SHRI DHIRENDRA NAL APIPEAL N0. 912 of 1996 p v6. State of Shri K.K.Singh, leamed counjse! Shri Ravindra Agrawal, learn| RAU Procedure the accused/appellan Dist-Raigarh in Sessions Trial N1 a for the appellant. ^d P.L. for the respondent/State. JUDGMEiLT tf)2.03.2006) By this appeal undersectjon 374 (2) of the Code of Criminal has questioned the legality and correctness of the judgment of c^nviction and order of sentenee dated i5.07.1994 passed by teamed Adc|itional Sessions Judge, Jashpumagar, . 278/93 whereby learned Additional Sessions Judge after holding the E^ccused/appellant guilty for commission the offence under section 302 jof the IPC sehtenced him to undergo imprisonment for life. •• / -ft^ 1f .?. ^M ^H^T ;fn^(^T felFF3n^I '^^s^'^iit^f ial T^ "4|i|lirlii, tSTfl'M'ls, i«i"ll-yy . .Qr-..A,3.i.^ snt^i's^giw'gftd c|f thtit infortned Kotwarvl/ent t 2. Case ofthe prosecution, ir| report P-1 in police station - Kan{ the effect that Narikpal transferrec| son-in-law Sonsai on account Sainathram was unhappy. On was returning to his house after Prahlad, the son of Sainathram, Prahlad said that "you have vvithdraw your complaint otherwisj went to his house from where he Mainathram came there and inforfi murdered Sukhni Bai with axe '( Thereafter, he along with that Sukhni Bai was lying.Ther^ shouider. Receiving this report theoffenee againstthe Penal Code, left for the scene of c|< 2 ofthe piace of oecurrence. A into possession under P-4. Body Centre, Kansabel for postmortem| ») conducted the postmortem an»j! noticed four incised wounds on th^ investigating officer aiso sought th| injuries which were found on the the axe recovered at the instance •^y accused/a^pellant gr^en df ^l^lioTilS'l T^FTcff "^ ft^ <^i^l< ^sipgiTsn^r- . brief.is that PW-1 Suresh lodged the ifeabel on 11.06.1993 at 13.00 hours to two. byhas of land in the name of his ,which the son of Narikpal namely day at about 8.00 a.m. when Sonsai c^llecting maftus flowers he met accused hear the house of Janakram, on which lod^ed the report against us, you should i^ you will be killed". However, Sonsai ^tent to the house of Kotwar. Thereafter him that Prahlad had attacked and lyhen she wascleansing the utensiis. to the place of occ'urrence and saw were injuries on her neck and left St^tidn House Officer.Kansabel registered under section 302 ofthe tndian cjccurrence and prepared the site plan P- colour sari of Sukhni Bai wa,s taken Sukhni Bai was sent to Primary Haalth |examination where Dr.Y.K.Toppo (PW- submitted the report P-6. The doctor neck and the chest of Sukhni Bgi. The opinion of the doctor as to whether the of Sukhni Bai could be caused from |ofthe appeilant. Doctor gave his opinion bjody [T^^f^ X!-HC-22 SI^TTST f-?w -sv^l •i'StIRT'ffitg ^g -uitlld'q, »iil*r!s, ^^.^a.i^' 3iI^5I'gTtiIWBfe 3 a» prese|it P-6 to the eflfect that the iniuries be caused with the axe so recovered prepared bythe investigating officer. taken into possession under P-8 from gave memprandum P-9 and in pursuan|i cot shirt, lungi of the accused and ax4 recovered under P-10. The articles sd examination to the Forensic Seience P-12 was received from there. etll'tlli'141-! tjTtRff 4 fSVf <h'^: ^; siran 311^1 on the body of Sukhni Bai could Panchanama of the body was Bloodstained and plain soi! was Ihe-placeof occurrence. Accused be ofthe said memorandum a Terri ;, the weapon of the offence were recovered were sent for chemical iLaboratory for opinion and report 3. After compieting the investigati^n charge sheet was filed against the accused/appellant in the Court 4f Judicial Magistrate First Class, Jashpurnagar who in turn committed Judge, Raigarh from where Addition^l Sessions Judge, Jashpurnagar recewed the case on transferfortrail. 4. !n order to establish the invoh/eihent ofthe accused in the crime in question the prosecution has examine<) nine witnesses. Statement of the accused was also recorded under Sefction 313 of the Code of Criminal Procedure in which he denied the pros^cution evidence appearing against him. Leamed Aciditional Sessions Judg|e after hearing tearned counsel for the parties convicted and sentenced thje accused/appeltant as mentioned in paragraph - 1 ofthisjudgment. he caseto the Court of Sessions We have heard Shri K.K. Singh ind Shri Ravindra Agravral, learned [ leamed counsel for the appellant for the State. counse ( /I [^^f^ ^-T' 's^ '^raRW, is^iy'is, isicii'y'f~ . .'^..•.A.>....?/..?..(/?^. "200 SCT^I ^^s; sv^S ;OTh:":fta sn^r ?^aiw ^rftiT ^ cbN^<4lr1 HiHdf "4 'fe^t ^R^K ^; arfSgil silt?r Homicidal death ofSukhni Bai i^ not in dispute. randrtother 7. As far as invobement of the concerned, the same is based on thel daughter of the deceased and PW-3| child witness who was aged about1 She has stated thaton the fatefu! da^ her meal and her maternal grandmothj time the accused came armed with srandmother Sukhni Bai on her neckl cut. He attacked her maternal gr fell down and died. On seeing the injt accused fled away from the place of o|i: she has categorically stated that sh^ her matema! grandmother. PW-3 that on the fateful day at about 8.00 a| that time accused came and attacked and then ran away. Accused disoute and Sukhni Bai succ'umbed tol oozing out ofthe neck. Neelavati Bait attaclted ^ccused in the crime in question is evidenpe of PW-2 Neelavati, grand Sirimati Bai. PW-2 Neelavati is a Vears at the time of her examination. vf at about 9.00 a.m. she was taking i^r was cleansing the utensiis, at that axe and attacked her maternal as a resuft of which the neck was twice as a result of which she injcident she raised screams and the >|ecurrence. in {he cross examination witnessed the accused assaulting ir|nati Bai, wrfe of Suresh, has stated |m. shewas brooming her house, at !on the neck and chest of Sukhni Bai Sukhni Bai on account of land |the injuries on the spot. Bloodwas i|vas present at that time. Sirinati accus^d/appellant Leamed counsel for the witness and the leamed triai Cdiurt rtaining from herwhether she un(|erstood argued that Neelavati is administered oath to her without the sanctity of oath or not. •• / [Trt^tf^ _~E X^^iC-22 an^r^i feW 311^1 •S7qhi"Hf?d (g) 7£f^Wivit, afli-y'iG, T^IRPJ'! ^^^,.A(^ sn^i'?Rnw(rf??i —^-+ admirtistered triiil tt is ti"ue that oath was hstance it was the duty of the witness as to whether she was undet and on reaching to the conctusion ought to have administered oath to the ground of this irregularitythe rejected. As per thesettled law befo| a child witness the Court is requirecj w'tness with'care and caution. that al! persons shall be competent| that they are prevented from unders( from giving rational answers to thos^ old age, disease, whether offcibdy or^nind Secti<?n kind. The Apex Court in the matter reported in 1995 Supp Supreme wtness is prone to tutoring and hen^ partjcularty when the evidence betijay matter of Panchhi and others Vs. iyDreme Court 2726 the Apex Coutt Ehe evidence of a child witnessl stigmatized. It is not the law.that if ;e rejected, even rf it is found reliablj witness must be evaluated more because a child is susceptible to be| witness is an easy pre^ / , ^I^^'T 'HT^Tf ^ 'fe^i' <f^«^R i?3if:gH3ii^r to a child witness. In the first Court to aseertain from the child ^•stating the sanctity ofthe oath or not jin affirmative the learned trial Court |ier. This is mere in-egulafity and on 4vidence of this Vi/itness can not be fe placing reliance on the evidence of to scrutinize the evidence of a child 118ofthe EvidenceAct envisages |to testiiy unless the Court considers s|:anding the questions put t6 them, or questions by tender years, extreme i, or any other cause ofthesame lofArbind Sinfth Vs.State of.Bihar Coyrt Cases 416 has held that child ;e court should look for corroboration ays tracesoftutoring. Again in the State of U.P. reoorted in AIR 1998 has held that it cannot be said that would always stand irretrievable witnessis a chitd his evidence shal! The law is that evidence of a child car^fully and with greater cireumspection |swayed by what others tell them and to tutoring. The evidence of a child [^^fig^ ;;::-HC-22 ~3S, -^WWi, S^WI'a, ,^^A.-..5..iW^ <^lA)lci4l't TTR^f ^ 'f^1^ i^l'^.K ^T arfigit 3nt?r witness is permissible if such witnes|s court after careful scrutiny o'f its evlidence and rsliabilityofthe same, where thj implicating the appellant, the thereupon. present in the house and when she axe and attacked Sykhni Bai, her m is found competent to testrfy and the is convinced about the quality s witness described the detail scenario can be based placing reliance convfction 10. In the iight of above princit>le if we scrutinize the evidence of Neelavati, she has categorically staljed that at the time of incident she was was taking meal, accused came with aternal grandmothertwice, as a result ofwhich she died on the spot. In th^ cross examjnation ofthis witness the defence hasnot been able to bring pny circumstance on record that in any way makes the evidence of this |child \Mtness unreliable. Further the evidence ofthis witness standscori^borated bythe medical evidence and the corresponding injuries found 01)1 the body of Sukhni Bai which were described by this witness. Mor^ov&r, PW-3 Sirimati Bai has also corroborated the evidence of PW-2 Neetavati. Shri Singh also argued that t lere is contradiction in the evidence of PW-3 Sirimati Bai as in the examin^tion-in-chief she has stated that at the time of incident she was broomiilg the house whereas in the cross- examination she has stated that shl minor contradiction and merely on t cannot be overlooked or re{ecte3. b was standing on the gate. Thisisa ^is ground the evidence of thls witness Evidence of these w'tnesses stands con-oborated bythe faetthat weapofi ofthe offence i.e. axe was recovered at the instance af the accused/app^llant and even bloodstained ctoths of [Tfr^ ^na^ '•'!'"" 'ftfc iTr'^'i w, Rnt^an^i sN'5? 'ft^s 'S^ ^!RRTT, ^fli'M'ie, f«)M!'Hy ^cocA...a^^ 3flt?r ^RIIW ^rfiTT -7— the accused were recovered from report P-12 clothes ofthe aceused blood was found on the axe. Mr. was found on the axe, recovery of crime in question. !t is true that no on this ground it is difficult to rejec| opined as per report P-6 that the inj( Sukhni Bai could be caused bythe Ehe accused were found stained PW-2 Neelavati and PW-3 Sirimatj evidence and recovery of blood^ establish the involvement ofthe ac| the post mortem report and the .ev| She post mortem and found incised region in the size of3 x %x 2 inctl Iso cut, second injury on the chest] windpipeand nearby btood vessels| the third and fourth ribs and death ind the deceased died due to inj(ines with inctles 12. Learned counset for the accl judgmenS of the Apex Court in the n} Kerala reoorted in AiR 2000 S.G. stains.on the axe andtherefore th' crime in question. / "' ^J . • •^^ici^ HiH^f ^ f^<^ <r^^.t< ^? SlPtfq 3fl^?[ |iis possession and as'ger th®F.S.L. Irere found bioodstained. However no $ingh further argued that as no blood |he axe -oannot be connected with the lood was found on the axe but merely cf the circumstance as the doctor has which were found on the body of ^xe in question. Moreover, ciothes of blood, therefore, ocular evidence of Bai supported by the circumstantial ^tained cloths of the accused axe, c^used in the crime in question. From (denee of Dr. Toppo PW-6 conducted sfround on the neck belowthe mandible as a result of which windpipewas in the size of2 'Ax %x 1 inches, the cut and that there were injuries near t)fSukhni Baiwas homicidai in nature failure, guilt of the accused is res^iratory ised/appellant placing reliance on the atter of Kallikatt Kunhu Vs. State of 235 argued that there were no blood same cannot be connected with the [^^fwr '-•;2 31Rr?I^t R^fs?.3n^i ;F:IW 'gfta "L!i*i]d''i, 8'Ti1<-i'i6, 'ferrey \^^Q •*']<^l*ldg- _..0^-^..'.3.1..3-/J,^, 3PTR? ' ani^l i^nw:'afe^T ^ was 13. We are-of the considered help to the accused/appellant as that case the Apex Court reached] clearly indicated that dagger occurrence. It was also noticed southern side of the pathway ieceased, therefore, the court circumstances are enough to present case the facts are entirel^ fhe memorandum ofthe accused fhe injuries found on the body saidweapon. deitiolish 14. Looking to the nature of i deceased we are ofthe been convicted under section imprisonment for Itfe. 3oe 5. In the result, w®are of th| *i'i|tia41-< 4W<fl 4'fe'st tFai-yK ^; sipg'ir sn^i <|ipinion that the above judgment is of no (he same is distinguishable on facts. In |the conclusion that as-the inquest report found in a sheath on the place of that dhoti and bottles vrere found in the s{arting eastwards to the house of the iteached the conclusion that these two the prosecution case. But in the different as the axe was recovered on |and the doctor has given his opinionthat oflthe deceased could be caused with the itljuries that too on the vital part of the considei(ed opinion that the accused has rightly of the IPC and sentenced to undergo e considered opinion that the appea! is !evoid of merit and substance an<J the same is liable to be dismissed. !t is accordingly dismjssed. Sd/- L.C.BHADOO Judge Sd/- Dhirendra Mishra Judge •• / [TTT^^fe^ ^ \^-°^/ 3 4'.-^