^^^^^lw Xft-IXS/CJai^ C;J^^<-5,09&-9-8t i CF0000058443 i^v!:,ionBei;ch^;!n:h3^ APPE^V' PRISONSJI -231-_- No. -—Nan^e ——^ Fattier's name- —-^u^3^———— RteiideBc^^-^SS^3S&,3B@_;S33a\ ^3C^' Sentenced to—^S^SP^-—- c.ii —^£L.^i^S^ —— ^fl-c' _ QSW^r '<^^\ ^K^^^ Uiider sectioaa —^^— — ——-—/-.by ^^r^^-—VA^i—^-^'-=^-^i»r^----^^ 'tt tls t^ ..^ .J" it is cx^ained to the prisQner thai: if i^ ^iates or wishcs to be represemed by a legal praclitioaer tne Appel&te Court'wyi not proceed ,with the base for, seven days unles^ tii^ iega? pra-.t.ii-ioKer s&ppe&rs.'If tbe iGgai.practiuoner.doesiiotappearwn.h 'ra scvea d<iys he m&y not be bcard al ail Ifthe prisoBerstates thai he does not wisii to be repFesentcd by lega! practi.tioner the court may procee<d at.once w.nh ihe caA£ and wiii isot bc obli.ge<i to givc a hearin^ to any leg-a! practitioner wlioshould ap^.tar. I 2 3 4 Date of Appiication for copy \of Ju.d^en.eni——————• D&te ofwhich copy receivcd ——^<--v—l'i-^-B——-———-- Date on which Appeal sent —~—L^;;--Ar^ __„;„-_„ Whether tlie prisoner wisbes:lb i^e Teprescnied. c^ iiot '-.yf&^Nv No.- ^m. ._-_-Naine—l ['^BT.-. - . Gontinued in-.- .-,-—^S^^:.-__ ja,i —^?^-W?.~ Ne-_-^8"Z———--—d.ted—^^^S'- Farwarded to thc CHIEFJUDICIAL MAGISTRATE ^S^?3&'- ^-.-..-—---- to> gathfif with a copy of judgement or-oi'der pas.sed in the -Mitmission to the proper Appiliiate Coun. •, SuperLniendcn^ ^ ^ llJ/^I^S^.-^i! '^ :.@t ff ^l ^; I •^. '^. 'M &L.. ^J :'0... , • ., Offic.—-—^i^^-^ Datc of Ft.. ,-10 accompany—~———— —— — ———-— Meaao of A^ , - the Appeliate Court. No^^:^2^^-?=:--^--^---Dat.ed^-^ ^^d to thc ^^^A^^^3^ ^7r^x5 ^^^-ry^A ^/P^fe^^^S;'^^ (^S^^^g - .....J.(J^jEfe,^^3^ '~^,w^'^<^f Datc QttecwptmAppliitte Ck)urt——-— --——--————-^---^^^^T^-^-^ ^s?^*°'} —198—/:»-...-——— ,. r--^ XI-HC-22 -s^ -^RT^ra, "^OT^. l^^ray ^^K '^R'CT' ^WT^,......a-^A.-....^t^ w^T m 1^N"^?t¥l '^RWW^ ^mf^^f 'w?<m ^ fezr -^$r^ ^ ^rf^T 3?i^?i DIVISION BENCH: HON'BL^ - &HON'BI| BliE SHRI LC.BHADOO : SHRI DHIRENDRA MISHRA, JJ CRIMINAL APPlAL N0.995 of 1995 Appellant Respondent Vs. ofMadhya Pradesh Shri Neeraj Mehta, learned coi|insel forthe appellant. Shri Sachin Singh Rajpi^t, teamed Dy. G.A. respondent/State. for the ORALJ (10.0^ UDGMENT .2006) Dhirendra Mishra. J By this appeal under Sectiojn 374(2) of the Code of Criminal Prwedure tiie accused/appellant correctness of the judgment of con |has chaltenged the legality and ^iction and order of sentonce dated 20.04.1995 passed in Session Tri^l No. 39/95 whereby the tearned Additional Sessions Judge, J^shpumagar after hotdirig the accused/appellant guilty for commis^jon of murder of SwarBs convteted him under Section 302 of the Indiari Penal Code and sentenced him to undergo impri^onmentfor life. [;Tft^^fe^ ^4- »..^5«..<.^L-i^^^^.-^S-^«^^^^ XI-HC-22 37[^r'^T f^TW^Tr^i ^)^icfi ^Ra 2. ^^ ^TPTRT3?. 'S'^a'tWTS. ^n^: ^..........;&.A.-A-..^t^; ^ .imw%w^"; ^T^TI^n^T^fN -2— J Case of the prosecution in brief is that] -^f^p^ <q]q^f ^fezf "<N^R ^T^R^IT^T on 26.12.1994 at 9.30 a.m. Gregory Ekka lodged a report jn police out-po|st Aasta mentioning therein that on 25.12.1994 on the eve of Christmas f^stivalwhen he was in his house, at about 8.(K) p.m. accused Vi^tor came |here and said that he had kilted his elder son Swartis after assaulting wit^knife. On receiving ttiis information the villagers went to the house of de4eased and found that he was lying with a vround over his chest from succumbed to the injuries at aboiit 1Q. the police proceeded for investigationj after due notice to Ihe witnesses. Th^eafter dead body was sent for post mortem examination to Primary He^lth Centre, Manora. Dr.R.S.Paikra which blood was oozing and he l.00 p.tti. After registering the crime and prepared inquest report Ex.P-9 P.W.-3 conducted the post mortem examination on ttie body of the deceased and submitted the report ff-7. The doctor has found stabbed wound over ttie right side of the chesjt of the deceased. According to the doctor cause of death of the dece.asjed was ©wesswebleeding due to puncture in internal organ and deat^ was homiddal in nafcire. During investigation, on the memorandum oflhe appellant P-2 blood stained knife was recovered vide Ex.P-3. Blood sts^ned clottiing of accused Vlctor was seized under P-4. Plain and blood ^tained soil was seized under P-5. Btood stained clothes of the d^ease^ the offence i.e. knife was sent f<j were seized under P-6. Weapon of «t- l r chemical examination and the examination report is P-8. The clwtj^r opined that the injury could be caused by the said weapon. Spot ^nap P-11 was prepared by Halka Patwari. Blood stei.ned woolen sweatejr ofthe deceased was seized under P-14. The seized articles weresentf^r chemical examinatton to Forensic ..4- •^..^ \ XI.HC-22 ^? "^FTt^F. ^TPTS, 'f^'ray ,w^mr^w% ^.....^.^..(.Nlor.MSlt TO ^ ^^ 3TI^r'^T I^W^IT 5h*1W ^-f?i<T 6. Science Laboratory under P-15. chargesheet was filed in the Court Jashpumagar who in turn Raigarh from where the trial Court re^ ^Ster completion of the inves8gation 3JF Additional Chief Judidal Magistrate, committ^d the case to the Session Judge, beived the case on transfer for trial. The trial Court framed the charge uhder SectionJ302 of the IPC and the accused abjured his guiltand pteade^l false implication inthe case. Prosecution in order to establish examined as many as nine witnesse| was also recorded under Section denied the circumstances appeari^ deceased was assaulting him by private defence he assaulted him an| the Homicidal nature of death of Swartisi To establish tt»e invoh/ement of a^ examined P.W.-8 namely Pirsila Baijba incident. She has stated in her evH p.m. she along with the deceased h| vras returning after taking meals. Shjc in law. When she returned back, tl^e programme was going on nearby.i were present at the place where Wqfe^R -RT^f ^ fe^ ICN^R '^'^TH^H^r charge against the accused has >. Statement of the accused/appeltant 13 of the Cr.P.C. in which accused ig against him and stated ftat the i, therefore ift exercise of right of ttius he is jnnocent. khife is not is dispute. ;cused/appellant the prosecution has i, wife of the deceased who saw the tence that on 25.12.94 at about 7.00 id gone to a village and the deceased has stated that accused is her fattier house was lockedand some dance l-1er mottier in law and fattier in law ^e ctance programme was going on. ^^S^^3..,s»^»!:^ ^^'..•-.^^st-e XI-HC-22 13H^r^T t^:fN'3?n^[ W^ ^f^a 7. "g^r ^Rn^R. ^ftw^^ N^rey WR^TW^F^ ^..........C^.r..^....<^<l^ 3W 'N^^' 31T^f ^^Tf^ '^?T -M-^ ^nfer^f -Rpraf ^ fet^f <F^?R ^7 3??1^H_STit^ They went to the accused and dems|nded key of the house howevefthe accused did not gh/e the key and ajt that moment her husband i.e. the dweased also reached there and on his demand also theaccused did not give him key and said that he woul|d hand over the key in front of the house. However on the way the a^cused caught hold of neck of her husband and stabbed him on his ch4st after taking out ttie knife from his waist. She caught hold ofthedeceas^d but she could not support him and both of them fell on the ground. Th^reafter number of persons reached there. They entered their house and t^er husband dled at 10.00 p.m. In the cross examination the defence ha^ Statement of tfiis wthess is corrobortited by P.W.-1 Gr^jory Ekka before whom the accused/appellant conf€ not been able to eHcit anything. that he assaulted his son Swartis ased. Statement of P.W.-? Is also FIR in which name of the by knife. P.W.-2 SHbester is the|witne^ on the basis bf whose memorandum knife used in the offerjce was seized. Stetement of P.W.-8 Pirsita Barba is also corroborated b^ the evidence of P.W.-3 Dr. R. S. Paikra who after conducting the pos^ mortem has found steib injury o^^r ttie right side of chest of ttie dec^; corroborated by promptly lodge<| accused/appellant has been mention^d. Thus, pn the basis of evidence of this witness the jnvolvement of the jaccused in the crime in question is established. Leamed counsel for the accused/artpeltant submits ttiat it is a case of single blow and the blow was allege|dty inflicted by the appellant without pre-meditetioh on the spur of momeiiit and wittiout any intention to cause T XI-HC-22 3T?^T^? f^ri^^ni^ '9CT?^^f^T 8. 9. 10. ^^f '^Nr^l, '^ft^PTS, f^iTOy •WTwwrt^........G<4.^io...c ill-C". -3ee^ a-iT^l^Wt^^T ^nfeF^r'wm ^f^ ^sTf^sn^i death ofthe deceased. He fiirther sutajmits that deceased and the aceuscd are son and father and there was ncj motive for the appellant to commjt the offence. In support of his submissjon leamed counset for the appellant has ptaced reliance on the judlgmenl ShivaDpa Buddappa Kolkar @. Budi Others reoorted in 2004 AIR SCW SJ736 and submits that in case during of Supireme Court in tiie matter of iapDaaol Vs. State of Karnataka & quarrel the accused suddenlyassau|ted the deceased with axe resulting into his death the offence is comnn|itted without pre-meditation or pre- arranged plan toattack deceased. Tljiough the accused could be imputed with the knowledge that injury inflict4d by him was likely to cause death, intention cannot be atfributed and th^ convicfi&n can bealtered to that of underSection 304-11 ofthe IPC. On the other hand tearned counset judgment of the trial Court. !or the State supports the impugned and that the inddent took place We have heard leamed counsel for (he parties and perused the evidence available on record. Taking into consideration the mann^r in which the offence is Gommitted ttie spur of moment without pre- meditafion and the appellant gave s^ single blow wtth knife over the chest of the deceased, we are of the c^inion that intention to cause deatti cannot be attributed to the accusedjthough looking to the nature pf injury [^rT^^RI^f XI-HC-22 : 's^-^Fn^ra, '^WT?, fNf?roy .^ro^r%w% ^C^..^.S:.l.^..'Wi^ 200 ^n^i'^i IfFti^^i^r l^^N> "^f^? ^he knowledge that injuries he was csjusing may result in his death is festablished. < \ 11. ^> ^nt^ ^TT§R^rftd ttie |n the result the appeal is partly allowec(. the IPC and the resuttant sentence instead the appellant is held gujtty for ^he IPC and sentenced to undergo Rl fo( ^ince 26.12.1994 and thus he has combteted |ail sentence, it isdirected that the appeljant be (nany other case. Sd/- L.C. Bhadoo Judge .J^^ -^mfemN 'nm^f ^ fe^ i^wgrr '^^w^?? Conviction under Section 302 of life imprisonment is set aside, offence under Section 304-11 of ten years. The appellant ts in jail more than eleven years of setat Hberty if not requir^l Sd/- Dhirendra Mishra Judge 't" [^t^^fe^ r