\ a-.'l XII-1890aiI) CJ.P.R-;9-?4 'QK^ \'5^')-^& \ WWW^^W ^,.AP^l..'bF!PraSONER^^^^ ^fJl^hS6'2:&^/9it Name ~^R(^~ C^T on 2^-^- 56 f'athei's' name /rf *': »K6sidence,y~-/6' Sentenced to SjJ3 f^ '<^l7T'Sns UnderSection ^<62 ^Ta -^-& ^^ ^ bv J*- A .T') --V. ft-.i It is explained to the pnsoner thatifhe stateshewi8hestoberepi5eseritedby;alegal practitioner the appellate .Gourt will not proceed with the case fdrsggendays unless the legal practitioner appeaTs earlier. Jf the-Ie^l •practttioner does npt appear within seven days he may noth*aard at^ll if^tto1 ^ngr statcs thathe does not wish to be repre- seated by legal practitionertBe cquirt.may'proceed at once with the case and wili not fcp obliged to give a heaATg to my iegalpractitioner who should appear. 1 pate qf Application for copy of Judgement 2 Date on which copy received 2.6 8'56 ____•_____ ^ -, ', . . . ^"-. /^ ^ ... 3 Date on which Appeal sent^VW/ _2. fl' '^QZS/f^ l^^«^>-3'^ 4 Whether theprisoner wishes to be represented oir not. •' ' .' ,;:; ' No^^^<^a"=-^T^••l^.C-^^-Mame "^TV^ ConfinS in JfC^Q Z^VT^Jait ^WIf-IVTt ^S^syn^ ~y No. Dated w& -- ST ^ /•<"&z^^/o^^fe^.^ytyf^^^-. ] to gether with a copy of judgement or order passed :in the cas'e forfavoiir ^oftiansmi- ssion tb the properAppellate court. ideat <^^Br ^3 iN?^? Date of receipt ifl . Oificfs'' Date ofreceipt of record to accompany the. MemoofAppeal tQ the.Appellate cdurt < / . • - .;•; • - -. 1 h^.-/-s-^" No . DaleA 199 Forwarded to the pf receipt ia AppeUate c'outt '\' -- -~ • T. O.) :l!lf: -/ H:;. @ XI-HC-22 'T5T -i||t|l!'l';I, aTilu'IS, fadl'Hy IIKMI tb-tira> 3ff^?r '<ra% ^^.fS.^l.lt-..Wi, 200 i^g' sn^i^i R'li.* sn^t 9t)^ yfia DIVISION BENCH: . HON'BLEMR, L.C. BHADOO & HOMT'BLE MR.DHIRENDRA MISHkiA. JJ 6.3.2006 Miss Biuu Baaerjee, Advoca^ Shri U.N.S, Deo, Additional Oral judginent dictated on fl Per L.C. Bfaadoo, J. By this appeal under Sect( Bharatlal Rajput has questionecj judgment ofconvK'tion.aitd order S.T.No.266/94, whereby leame4 BilEispur after holding the accu|! niurder of Sheetal eonvicted him Code and senteneed to undergo u4 The prosecution case, ;in b4' Arjun Sidar (PW-1) fedged the F.I.| to fhe efFect that he is the residj Vasu Contractor, Mauli Bai (PW|- residing ia his house as tenaut(g aecused Bharatlal, husband of wifh Mauli Bai oftenly. Both the for fhe appeUaat Public Prosecytor for the State. |CI!S. -yrevious husbaud. Today MaiiU - . /- • • ' and retunxed -froin her work uiAhi -. / ,^:- -^. ctii^i(vi4i'T +it+ii?ii* ^ [^^ <.r3i^i< ^; 3iPa*i3n^r on 374 (2) of the Cr.P.C. appeUsuit fhe legalily & con-ectness of tfae if sentence dated 26.8.1996 passed .ia 18t Additional Sessions Judge, sed/appeHant gi-iilty for coiuinittiag inder Section 302 offhe Indiaa Penal prisonment for Hfe. sf, istfaat on 7.9:1994 at 19.05 p.m. !. (Ex.P-1) in the PoUce Station, Korba •nt of Kuaabhatta aad workuig with 2) along with .her two daughters is Rs.100/- per nionthaad in between auU Bai, also used to couie and stay yil chfld of MauM Bai were froni her iai werit to do work ifi bthers house everung. When he returaed froni lus Mauli [XT^ife^ 11 ^t ^ XI-HC-22 T3T'^ITqRTT, ©•alyi®, f««11'M>l,< »l|t|?(Tsb<irai "TFI. 200 fsi^S' sn^i'^i ft<-)i* sn^T sh*lich ^rit^ OT^I ?(<IRR'Hfel weepifi haplpened, work, Iie saw that aear his tenadt staadiag aud Mauli Bai was enquired froni her as what has that ber daughter Maaisha told murder of her daughter Sheefalb] out ofthe nose and ear ofSheetal. report. Receivitig this report, the ^ Korba registered the Criine No.8251 Section 302 ofthe IPC, left for the notice (Ex. P-2) to the Panchas pre^| dead body of Sheetal, aged about| postauortem examinatioii to Primait 4, where PW-6 Dr. B.P. KaawarJ postmortem on tUe body of dece; report Ex.P-5, in which he occun-ed.due to aspfayxia as a resi4t After completion of investi^ Court of ieamed Judicial Magistr^ cominitted the case to learued leaaied 1st Additioual Sessions Ji traasfer for trial. The pro.secution in order t( accusedexamined sixwitaesses. Sessions Judge recorded the Dpiri|ed statedieut •• / CM^I?T^1 'RR^f ^^^ ^^\< '^'siPaH 3ii^r ^t's house number of persons werc i|ig, on wNch he went near her aiid [, fhen Mauli Bai infonned him [her that Bharatlal faas CQmmitted pressiag her neck, blood is oozinj Pearing this I have come to lodge the Itation House OfEcer, PoMce Station '96 for conuaissioa of offence under |scene of occiuTence aud after giving ^ared the Panchnama (Ex.P-3) ofthe 1Y2 yeare. Dead body was sent for b^ Health Centre, Korba under Ex.P- Assistant Sui^eon conducted fhe ised and prepared fhe postmprteui fhat iu his • opinion the death of stiangulatioa. ' ^tion, Ghai'ge sheet was filed in the ite Firet Class, Korta, wKo in tum Judge, Bilaspur from where idge, Bilaspur reeeived fhe case on Sdssioits Ctn estabUsh the charge agamst the the ofher hand,, learaed Additional of accused.under Section 313 of -^- : ['Tfr^ ^Ra^! 1.":'S» ~7f B !;i -^ XI-HC-22 ^g '^(rawi, s'ate're, ftwi'Hy S[I^T?T XR^? *<i*«nia)iich"""""""""""""""""""W^ 200 'fN^T':"""""""""" sn^rqB Vw'ii sf^v ^HJ^ ^%tt sn^i ^giwdfer -3 Paria fhe Gr.P.C. ia which he deuied fhe he is huiocent. He has further marry with him and he refus^fl iinplicated in fhe crune. - , Learaed Additional Sessioni PubUc Prosecufor.and eounsel for accused as mentioned above in. Homicidal deafh ofSheetel isi As far as the iavolvement of! niurder of Sheetal is concerued, ocular evidence of PW-3 Maaisha, sister of deceased Sheetal. Leametl argued ffaat evideace ofPW-3 fhe confidence. as ia the aatairal why she did .notwent to fhe neigl) theia. She further ai^ued fhat th) in fhe evide&ce of P^-3 Manisha. $ ia lodgiag fhe report. On the ofher haad, learaedl State supported fhejiidgment pfttlc It is admitted position fhat about 6 years; and for placias witaess the Hoa'ble ApexCourtia of Bihar repdFted ia 1995' Supp Manlsha ^••" °[iT^[^ftri ^Tm^rf ^ f^st' <t^i^i< ^rsifSOTan^r brosecution evidence and stated that stated that as MauU Bai waated to therefore, he has been falsely Judge after hearing the Additional faccused convicted aad sentenced the a]a-l offhis'judgiuent. not ni dispute. ^ccused/appeUaiit ia coinuiitting fhe the prosecution case rests on the tlaughter of MauU Bai (PW-2) & elder counsel for the acciised/appeflaat ijisha, a child witness does not uispire dourse when she witnessed fhe criine tbourers and disclosed fhe matter to ;re are omissioas aad contradicfions She furfher argued that there is delay Additidnal PubUc Prosecutor for the trialeourt. r-3 Maaisha is a clifld wtoess, aged iliaace on fhe evidence of a chfld jthe matter ofArbind Singh Vs. State (4) Supreme Cowt Cases held that fflv H .[Tft^ ^pg^ II j]. + ^ XI-HC-22 7«?';qp(RT2T, 9TilwiG, (°ICTIUy 3TT^?T tRF^ *<l*«fTshllcb '^ 200 ft^ST' SII^T^I [<(-li.+ SS^V ?b-4i°t) •^fe<l sn^?i ^giwafei ±±i chi'L)I(n<fltf HWV^ ^ ^^/Ti^i^iT ^aiPgifsii^r "child witness. is prone to tutorin^ and hence oourt should Jook for corroboration particularly when the evidence betrays trcices of tutoring. ° 'Agaiii iu the matter ofPanchlti and others Vs. Stateof U.P. reported in AIR 1998 Supreme Coiwt 2726 it cannot be saidthat ihe evidence oj r, ,the Hon-'ble Apex Court held that " 'ac3vldwitness would always stand irretiievable stiginatis.ed. It is not (^e tow that if awiiness is a child his evidence shall be rejected, even if evidence ofa child witf^ess rrwsi b ;'( is foiazd reSable. The law 'is tJiat > evaluated more carefully afid wiih greaier arcumspection becxwse a (jhi7d is stisceptible to be swayed by what oihers iell ikem mtd thus ^. child witness is an easy prey to tutoring." Iri the matter ofRatan S|iagh Dalsuklibhai Nayak Vs. State of Gujarat reported in 2004 Supre|aie Court Cases (Cri.) 7 fhe Hon'.ble Apex Court held that "the evidend^ of a dwlct witness is penmssibfe if sudt wipzess is found competent ^o iestify and the court after careful |o? about the guaHty and reliabiliiy of ped the defail scenario ifnpKcai.ingthe (stsed pladng reKance thereupon." scrufiny of its evidence is corwince fhe scune. where the witness descnj appeTlani, conviction can. be b\ confidence of the court aud the: Therefore, the evidence of. a child ^itness needs close sci-utiay ia order to ascertain whether the eviden<|;e of a child witness iaspires the is no chaace of aay tutoruig or ofherwise before placing reliau.ee oi^ the evidence ofa child witness. ' Applying the above principlej ifwe scrutinize fhe evidence of PW-3 Maiusha, who has stated that on l|he fateful day her mbfherweD.t to do ., ..^^ ^^ ^^^.^.^ ^^ ^.^ ^^.^^*^.^.^ ^^^ ^^^^^*/-^ work iu ofhers hbuse and Bharatlalwas at fhe residence, She alon^ -$•- [Tfr^^f(3^ >- /; ^^~ + XI-HC-22 sn^f^i R-fi'* 3D^?t stTi^i^ 'pf^ 1"- -Svi -4Wicf<1), i?Til*f'!G, fawi'yy WWiT (blt^ "WI, 200 fN^ST' aii^r T^nwgfsd -$~- at>le becaitie Cbi left dlid M' with her younger sister Sheetal able to watk, howeyer, she was weepiag, fherefore, accused the leg, He pressed ttie neck pfSjEi as a result of which she difed, started ooziug out ofher nose, Sheetal with the bed sheet aad up Sheetal for giviag food, she her raiother returued she in&naed aud also disclosed to her mofher murder of Sheetal by pressias Sheetal, she came out and sat. Ii aad saw her sister and thereafter fhe poUce that Bharatlal niurderejd whea her sistEr was weepmg. PSy PW-3 and deceased, has stated in| femiale children namely Manisha namely Baburaj, as Baburaj accused aud was residuig wi^ Kuanbhattapara, Korba. She gs^ri mamage with fhe accused and' house she heraelf, Bharaflal, Mai|j Bharatlal was working in the gar^ work of cleaiiiag utensils in otfa^ / i • - 1 >. / l- ^ cbMta'^.^l^l^f'^fe^TiFilWK ^Tartigqsn^T , 7as at the residence. SUeetal was not to sit. On thatday her sister was annoyed and he assaulted her with Sj&eetlal by leg. He assaulted her twice, being assaulted by accused, blood tyereafter, accused covered the body of leFt the house. When she tried towake not wake y,p. In the evening when her Buofher that Sheetal is not rising that accused Bharaflal has coininitted ;r neck. Thereafter, her mofher saw the night, people ofthe vicmity came |fhe poUce came. She also disclosed to her sister because he became angiy /-2 Maiili Bai, inother of this witness her evidence tfaat she was haviag two |& Sheetal from her previous husband -her, therefore, she mamed wifh (h accused in a rented house at birth to second child before the |she was about 1% years age. In fhe isha& Sheetal were residuig. Accused ige &f Sardarji and she used to do the « ' • ;rs faouses. Behaviour of the accused 14ft stve [^ ^Ra^ XI-HC-22 •s^^iraiw. ^Til'y'iii, RiMi'yy *<l*K»(TWira? "WI, 200 1^^T" •ifll^I^T h-u'h sf^ sh^i^) ^rftcT ^T^fci^ll Hl^<?lT^ f^Ld1 '(.^-^1? ^slliiTOSII^r —fe- towards her children vsas not goo fhe. residence, she left for.faer daughters iathe house. She When she reached the house sl sittiug at fhe dQor of the house, why she is weeping, fhen Maiiist inurdered Sheetal, When she reac residence. Maoisha iiifonued her cpvered the body of Sheetal with and saw that Sheetal was.lying sheet, when she remoycd the- b( cpming ovtt. from the side ofnos^ fhe neck aud Sheetalwas ah-eadtl on which people ofvicmity camc| the poUce.. PW-1 Arjun, who we| steted in his evidenee that ia.fhe saw that number of persons wer( tenant, he went there aad enqi^ younger daughter of Mauli Bai v| comuig out of fhe nose of the gi( her body. In view of the above evidli 'inspiTes the confidence .of the' categoricajly .^iarrated fhe f.. On the fatefttl day, Bharatlal was at w^irk leaving behiad Bharatlal and her retwlued at about 5.00 p.in. in fhe eveniug. [e saw fhat Maiusha.was weepiag & jherefore, she enquired from her as to la disclosed to her that fhe father has jhed the house, accused was not at fhe Ifhat affcer comimtting murder accused bed sheet. She went iaside the house to the Qoor aad was covered with bed kd sheet she saw fhat the blood was and fhere were mat-ks of injuries on dead. Thcreafter she started weeping and thereafter inatter was reported to (s fhe laadlord of PW-2 Maali Bai, has ivening he retumed froia his work.he coUected ia front of the house of his <u~ed, OB, wtuch he was informed fhat ?as murdered. He saw fhat blood was [I and there were inarks of iujuries on ;nce, the evidence of PW-3 Mauisha X)urt, for the reason^, that stie has inanber ia which fhe accused assaulted >. / -•7 J .^•l '^^- - [Tft^^fe^ XI-HC-22 3(1^1 ^it f'w'h snt?T ^*( W?t) y, ^- ^«?"-qFn?F?,'^tflWT?, f^cll'yy W^?T 'CR^? fwiwwiwas "H^ 200 •fa^T' ST^I ^giiER'Hfer —I- deceased Sheetal, Her evidence evidence because doetor (PW-6) coaducted the postmortem ou th( as 7 injuries on her body, fliere neck aud he opined fhat death o< strangiilation. TIierefore, the Bharatlal pressed ffie neck bf fhe medical evideace. Moieover, the whole stoiy to her luother deposed the same before tlie C< examinatiou of fhis witniess, whi<| unreliable or untrustworthy., So far gs fhe argument aceused/appellaat that the evid^ why she has'not narrated the in|: find any substaiice ia-fhis years old cb3d aad it caunot be| fhe neighbourer house and discl4 So far as the argument acciised/appeUant regarding deii mcideat is dated 7,9;1994, on reportwas lodged and as perevit^i MauU Bai retymed at abouf 5.0CI work, Manisha iiarrated fhe mciijl SUeetal TJ ^ipfe'TlT iniRff ^ test <fai*^i< ^; aifigi) 311^1 mcliftent Istands corroborated by the medical has stated in his eviderice that he j-'body ofdeceased aad found as many t'ere abrasions injuiy N0,6 Ss7 on ffcie (•cun-ed due to asphyxia as a i^sult of ttatemeut of Manisfaa (PW-3) tfiat with leg stands eorroborated by PW-3 Maaisha immediately uarrated fklauli Bai (PW-2) and Mauli Bai has ^urt. There is nothing in the cross- kh makes the evidence ofthis witness |tdvanced by leamed counsel tor the ^ce of PW-3 becomes doubtful as to 'ideat fo the neighboui-ers, we do not because Maaisha is also a sbc expected jrom her fhat she wiB go to >sed-wh.at has bappened in her house. by leamed coiinsel for the ly ui todgiag the FJR is conceraed, the fhe same day evening at 19.05 p.m. ;nce ofPW-1 Arjun & FW-2 Mauli Bai, p.m;. in the eveniiig after finishing her to her and liiereafter, PW-1 Arfiin —s~_ [•qt'&lfi^t . arg4nient advtoced T XI-HC-22 'ss '^ipn^pr, Wtwr®,ftdi'yy *<WMTth1|ch' "TF1, 200 f^^r 311^1 ;W W^ 3f^S sb-RNi ^tiicT [ios <^1; ..'- '-'tf1 '[ -' <- ^^1 -'' .;K •y aiTI^T e<-ai^R ^ftcr -J add also came fi~om his work and when ia fiTont pf the house of Mauli Bai, to fhe police station. Therefore, i1 (ietey in lodgiag the report in ordei •'• c\i: ' ' ' ' .: accused/appeUadt. Moreover, the also adriussible under Section 8 reasons that as per evidence ofPW with her, but on the fateful day aft| he disappeared froin fhe hbuse Fesidence. The evideace of PW-3 by the report which was lodged irj facts are mentioned wliich Bas beei In view ofthe above, we are e| no illegaKly or infirmity m the fhere is no substance ui this appei accordiagly, it is dismissed. "SdT^ —C.Bhmdoo Jadge •• / <:hl<{f<l-41Tf "WRlf ^ 'fe^ ^-^K ^sTfSOTsn^r |he saw nuniber ofperaons coBected Pie enquired and thereafter, he went cannot be said that tliere was aay to cook up a false case against ttie |conduct of accused/appetlant was bf the Indian Evidence Act for fhe- -2-Mauli Bai, accused used to reside ^r cominitting the ciime iu question, . ia tlie everuag he was not at the Wanish.a fiu'ther stands con-oborated ttie police station ia whicli aU fhe stated by PW-3 Manisha. the considered opiaion that there is of fhe trial court aad as such il, same is Uable to be disinissed and fiddm Sd/-. Dhirendra Mishra Judge ,ft-~ [^^f^