C'F'0'00006bl69 Q-y-,4 A£U9\% •^ ^&r ^) ,,^1 [Jb. ^l^ >' ^n-.N<s^8&/% APPEAL PmSONER x>^(^^ Nam.e / ^^)'W ^^TS^ Father^ Name. Age <^& Cf€_. Scntenced to___^^M^3jdl^ Uesident ^^_<s»^'^^'.^</>T- -^^^sr^^^)- on hv-ge Under Section ^O^ T<^C. by ^4 ^' <y^^t(^^ It is explained to tbe prisoner that if he states or wishes to be represented by a legal practitioher the Appellate Court willnot proceed with the base for seven days unless the legal practitioDer appears If the legal practitioner does not appear within seven days he may be beard at all if legal practitioner the court m9,y proceed at once with the case and will not be obUged to give a bearing to ^i^iegal practitioner who rfiould appear. ^ Date of application forcopy ofJudgement :- 2. Date of which copy received :- \ ?7' ^ ^ 3. Date on which appeal sent :- \0 -~7- -^B 4. Whether the prisoner wished to be represented or not :- Yes / No- No. ^T/9P< _Name ^^^" ^J' -^4^1^^' Continued in ^ ^ Jail_M^<§^, No. ^B ^w^r- Qfi Dated 16 -7-9.B Forwardedi '"•^ tegether with SF JUDICIAL MAGISTRATE, _^^f^_^^ej :y )py of Judgement or order passed iji^the case for favour of transmission to the proper Applleate Court. ( Z^fl^W. •^ Su perinten t./Sub-Jail. Date of rcceipt in C. J. M. Office. rf |"7^ ^ ^ Date of receipt of record to accompany. Memo of Appeal of the Appellate Court< No._l^_„dated^^3ill_ Forwaided totheJ@E_@J^^l3r ^&r(^ L^r<p ^j w^ ^: <lt:i[Xdts'yit^rg ^q-f t>^€^f receipi in A^ptieaie Court. XI-HC-78 W^T^Tf^TW cTSTT3TRST5h^l<=b 3^T;:^TR^T, ^TTl^41(o, f®j<ni^^< ^INdl $b^|cb ***''* *'*''** * <'<7^*'<^3>* ^F^" ^o^ 3ll^l ^^ch (y^si^) ^WT ?RTTW^rf?cT^TT^T <=hi^l<n41^ Hi^ciT^ftel^t<f^^« ^^Tf^R'3TT^r DB: - Hon'ble Shri L.C. Bhadolo & Hon'ble Shri Dhirendra Mishra. JJ. 13-2-2007:- Shri R.K. Jain, counsel f^rthe appellant. Shri U.N.S. Deo, Addjtional Public Prosecutor for the State/ respondent. Oral judgment dictated o L.C. Bhadoo. J. n Dais. Perused PUD dated 16/1/2007 sent by the Superintendent, Central Jail, Jagdalpur mentioning ther|ein that the accused is in detention since 1/7/98 and he has been corfcvicted under Section 302 of the I.P.C. Looking to the detention perioc) with the consent of learned coul [, it was decided to hear this appeal finally |isel for the parties. This appeal is directed a^ainst the judgment of conviction and order of sentence dated 1st July 199^ passed by the Sessions Judge, Bastar at Jagdalpur, in S.T. No.538/96 v\ the accused for commission of committing murder of his imprisonment for life. rhereby learned Sessions Judge convicted offence under Section 302 of the I.P.C. for wife and sentenced him to undergo tioi|i is Case of the prosecutjoi|i is that on 17-11-96 one Kayaram gave merg intimation (Ex.-P/11) in tl^e Police Chowki Mardum to the effect that on 16-11-96 in the morning h^ returning, he saw one dead bo| Sukdaram, Sukdaram inform< body. They saw that dead went to reap paddy crop. When he was in the field near the forest and informed Kotwar Sukaluram Patel, they went to see of a female was lying there. Dehati P.T.O. XI-HC-78 3^cT ^INI^, ^Tfl^^Ko, f®lcrll^y +11*1^11 Sh+lich ^IT 200 3T[^T^TR^i<=b cTSTT3TR?T5h^lcb ^ii^i ^^cb (^t^^r) ^TTW^cT^TI^T •—< ct)i^f<n41-i ^i^<^T^:te1c^t<r^<-<i< ^^rf^TW^T Nalishi Ex.-P/12 was lodged |ay Lachchuram, father of the deceased on 17-11^6 in the same police o|ut post mentioning therein that his daughter Dukar Bai (since deceased) v|ras married to the accused 4-5 years back. After one year ofthe marriagel accused started quarrelling with Dukar Bai, as a result of which she came |to his house. 4 days thereafter the accused came and took Dukar Bai wjth him. Thereafter, the accused assaulted Dukar Bai with axe on her hejad, therefore. Dukar Bai again came to his house. The accused came reported and the accused wa! accused forcibly took Dukar about 7-8 months. On 17-11- Ermur. On receiving informati Wednesday both Bojaram a and attacked him also. The matter was sent to jail. After release from the jail, the 3ai with him. They remained together for 196, he came to know that the accused has committed murder of his daugjhter with axe and body is lying near village |>n, he went on the spot andsaw dead body. His younger son-in-law Pafiduram informed him that on 13/11/96 tid Dukar Bai went to the market. After retuming from the market, th^y stayed in the house of Bandaram. On 14/11/96 at about 10-11 am tfiey left for the field of village Marega. On 15/11/96 at about 12-1 p.m. a<|scused Bojaram informed Bandaram that he has committed murder of his |wife by assaulting with Tangia and body is lying near village Ermur, on v|/hjch he said that you inform Lachchuram, father of Dukar Bai, and he| Lachchuram that the accused Receivjng this Dehati ^alish, Investigating Officer left for sct Panchas, prepared inquest Exl Dukar Bai was sent for post Centre, Lohandiguda under E)|; left the place. Panduram also informed ^as committed murder of his daughter. case was registered under Ex.-P/14. 3ne of occurrence, after giving riotice to the -P/1 on the body of Dukar Bai. The body of |nortem examination to the Primary Health ^.-P/2 where Dr. Virendra Thakur conducted P.T.O. XI-HC-78 ^n^T^T^rN) cT§TT3TT^T9b^|ch ^ 3^ ^l^lcrl^, ^Tf1<-ljl(o, fa^K-iy ^1*1^11 »i+iicr» ^ 200 3ll^l ^flch ('ic<i^s«^T) ^cTTW^cTW^T chl^f^l41v1 ^IHdT^'te^^^K ^3Tf^'R'3:n^T post mortem on the body of D|L<kar Bai, preparedpost mortem report Ex.- P/13 and opined that cause t>f death was haemorrhage and shock on account ofskull injuries. Deattjiwas caused approximately within 3-4 days prior to autopsy, mode of deatl|i was homicidal. During police custody, the accused gave memorandum E]^.-P/9 regarding weapon ofoffence i.e. axe, in pursuance of that, axe w|as taken into possession under Ex.-P/5. Recovered articles were sent| Science Laboratory, Raipur, frc| After completion of the for chemical examination to the Forensic >m where report Ex.-P/10 was received. investigation charge sheet was filed in the Court of Chief Judicial Magistitate, Jagdalpur, who in turn, committed the case to the Sessions Judge, J^gdalpur. The prosecution in or|der to establish the charge against the accused examined 11 witness^s. Statement ofthe accused was recorded under Section 313 Cr.P.C. in ^hich he denied material appearing against him in the prosecution eviden^e. Learned Sessions Judge after hearing arguments of counsel for the r|espective parties, convicted and sentenced the accused as aforementionedl. We have heard Shri R.| U.N.S. Deo, Additional Pub|i perused the record and judgm^nt of the trial Court There is no direct or connect the accused with the K. Jain, counsel for the appellant and Shri lic Prosecutor for the State/respondent, locular evidence in this case in order to |irime in question. The whole case rests on circumstantial evidence i.e. nlotive and last seen together. As far as motive is concerned, in Dehal father of deceased Dukar Bail :i Nalishi (Ex.-P/12) given by Lachchuram, it is mentioned that the accused used to P.T.O. Xi-HC-78 ^ ^ 3^T ^i^icnq, ^Tfl^^Ko, fs|<r1H^< +11+1^11 ?h*licb ^ 200 3T[^T^T^i4) ?TSTT3TT^T9h^ich 3< 1^1 ^5icb (y<^<s«<^r) ^TTW^fN^TI^T -4. beat Dukar Bai. Even onc^ <=hi^f<n41<i ^i^^T^:tel:^'<f^<-<ii< ^3Tf^R'3Tl^T he assaulted her with axe, thereafter he assaulted himalso. The mafter was reported to the police in whjch the accused was sent to jail. Wljien he was released from the jail, he again assaulted Dukar Bai and in |this incident, she was murdered. But the prosecution has utterly failec| to establish movtive. Lachchu has been examined as PW-7, in his wh about motive of the accuse^l in crime in question. He has not said anything about the facts rner) simply stated that Panduram <| committed murder of Dukar E| Thereafter, he along with his| Ex.-P/12. In para-2 he has s\ daughter was murdered. Tjhe relations between accused and the deceased were good and thej Lachchu and mother of the d^ informed that somebody has Dukar Bai or in any manner I Even Sukda who informed thi; there is nothing on record to s murder of his wife. As far as last seen is c< sle evidence, he has nowhere said anything tioned in Dehati Nalishi Ex.-P/12. He has ame and informed him that the accused has ai and her body is lying near village Ermur. wife went and saw body. He gave report :ated that he did not know how and why his ^ never quarreled. R/V-8 Hirme Bai, wife of •ceased, has stated that one Sukda came to their village and informed therffi that the accused has committed murder of their daughter. Body is lyin^ near village Ermur. She along with her husband saw that injuries w^re present on the body of Dukar Bai. In cross-examination, she has ^tated that Sukda came to their house and murdered Dukar Bai. In the first instance, she has not stated anything 4>bout motive that the accused used to beat le had motive to commit murder of his wife. »witnesshas not been examined, therefore, ^how that the accused had motive to commit ^ncerned, star witness regarding last seen is PW-2 Bandaram, co-brother o|f the accused. He has stated that about 5-6 P.T.O. XT-HC-78 3T^T^)Tf§FTt^ cfSTT 3TT^?T ^HT^ s^r ^iiqi<n^, ^Tn^i^, facni<-i^< +11+1^1 «>+1l<5h ^T 200 311^1 <45(cb (<^3^^) ^RTTW^rfN'^Tr^T ^- months before the day of his stayed at his residence. In th^ to village Marga, on the same house of his co-brother Pandtu Pandru, came and informed hi has committed murder of his vl stated that the accused and h| they stayed at the residence) separate. He is not aware (since deceased) used to quaf as PW-3, but she has prosecution case. Pandura<n examined as PW-4. He has informed that the accused has| along with his wife went to villi the neck ofthe deceased. Th^r examination, he has stated his wife. Villagers informed of his wife. Thagi has not wlhether turlied th^t hjm beeh prosecution has not been a|)le establish^he fact that the accu^ed were seen together just befoij nearby the place of occurrenc theory is established, unless s^ime evidence connecting the accujsed basis of last seen, the accuse<tl considered to be a very weak| <t)i^f<yi41-i ^i^QiT^:te(<ft<^i^i< ^3Tf^R'^T^T ^xamination, the accused and the deceased morning, they went to reap crop of paddy |day the accused returned and stayed in the One day thereafter Peede Bai, wife of im that on account of quarrel the accused ^ife. In cross-examination, this witness has [s wife had not stayed at his residence, but of his son Dole. The house of Dole is the accused and his wife Dukar Bai \TQ\ or not. Peede Bai has been examined hostile and has not supported the co-brother of the accused has been |stated that his co-brother Thagi came and lcommitted murder of his wife with axe. He |ige Ermur and saw that there was injury on i^reafter, he informed Lachchuram. In cross- he has not seen the accused assaulting that the accused has committed murder examined by the prosecution. In fact, the to bring on record any evidence to and the deceased when she was alive ife the date of incident or they were seen te. In the first instance, even if last seen is corroborated by other circumstantial with crime in question, merely on the cannot be convicted because it has been |type of evidence. Moreover, in this case, P.T.O. Xt-HC-78 CT^T^rtq^ich cfSTT3TT^T$b^|ch Barve ^ 3^T ^l^lcn^, ^Tfl^<ll<o, facrjl^y ^l^dl sb^lcb ^200 3TT^TlT$ra? ^<TTW^Tf^r3Ti^T —^ orfcler ble even the prosecution has not On the basis of last seen in question, the prosecution is crime and last seen must possibility of commission of proximity with crime and last established by the prosecutior| under Section 302 of the I.P.Q such finding ofthe trial Court i^ t>een able to establish Jastseen theory also. to connect the accused with the crime in r|equired to establish that time between the so small that there should not be any |crime by third person and there must be ^een. None of the circumstances has been in this case in order to convict the accused \.. There is no legal evidence on record, as perverse. It is unfortunate that th^ about 10 years without any lesjal app^al In the result, the imposed upon the accused/artpellant set aside and he js acquittec| forthwith, if not required in any| Sd/-. L.C, Bhadoo Judge <=hi^f<yi41yi ^i^^T^fte^^^K ^3Tf^TT3TT^T accused is in detention since 3-12-96 i.e. evidence on record. is allowed. Conviction and sentence under Section 302 of the I.P.C. are of the said charge. He be set at liberty othercase. _ - Sd/- Dhirendra Mishra Judge P.T.O.