(Delivered on this the 09th day of January, 2017) PER: Subodh Abhyankar,J.The present criminal appeal has been preferred by the appellants against the judgment dated 19.5.2007 passed by the Special Judge, SC & ST (Prevention of Atrocities) Act, Rewa in Special Case No.30/2006 whereby each of the appellants have been convicted under Section 148 of IPC and sentenced to suffer RI for one year and fine of Rs.1000/-; under Section Section 302/149 of IPC RI for life and fine of Rs.1000/-; under Section 307/149 of IPC RI for 10 years and fine of Rs.1000/-; under Section 323/149 of IPC (on seven counts) six months RI under each count and fine of Rs.1000/-, under Section 452 of IPC rigorous imprisonment for one year and fine of Rs.500/-; under Section 427 of IPC six months RI and fine of Rs.500/-; under Section 506-B of IPC RI for one year and fine of Rs.500/-.In default of payment of fine of Rs.1000/-, the appellants have been directed to suffer simple imprisonment for six months and in default of Rs.500/-, the appellants have been directed to suffer simple 2 Cr.A. No.1261 of 2007 imprisonment for three months.All the sentences are to run concurrently.2 Cr.A. No.1261 of 2007The facts of the case in brief are that on 16.3.2006, at around 8.30 in the morning at village Itwari Tola, Khatkhari, the accused persons, namely, appellant No.1 Baijnath, appellant No.2 Umesh @ Chotani, appellant No.3 Ghanshyam, appellant No.4 Awadhesh and appellant No.5 Ramsahodar armed with various weapons including gun, Farsa, Lathi etc. came to the house of deceased Buddhsen Saket and after breaking into the house, caused his death.In this incident, Radhiya, Jirraua, Ratan, Savitri, Asha, Devnarain, Gulabiya and Kiran were also assaulted and were caused injuries especially Jirraua, who received grievous injuries and her dying declaration was also recorded, but, fortunately she survived.The case of the prosecution is that on the fateful day of 16.03.2006 when the appellants barged into the house of deceased Buddhsen Saket, his wife Radhiya tried to stop them but the appellants broke the door open and murdered her husband Buddhsen Saket.The FIR (Ex.P/1) was lodged by Radhiya (PW-1) herself at around 9 a.m. in the morning against as many as nine accused persons.Since other accused persons, namely, Nichani S/o Ramsahodar, Vishwanath S/o Ghanshyam, Raghurai S/o Kamla Prasad and Sanjay S/o Raghurai were absconding, hence the trial was conducted against the present appellants only.Radhiya (PW-1) has stated in her statement that her husband Buddhsen Saket was fired upon by accused Marchani.She has also stated that all the accused persons assaulted her husband by various weapons and Sahodar caused Gandasa injury.She has stated that the dispute arose because they were constructing a latrine on their land.She has also stated that she knows all the accused persons present in the court and that she had also received an injury in her right hand.She has been declared hostile only on the point that the assault was made on them on account of their caste.She has also stated that appellant Baijnath had hit by Gandasa on her hand and also that they 3 Cr.A. No.1261 of 2007 assaulted Buddhsen as well.He has also supported the case of the prosecution and named all the accused persons as the assailants.He was declared hostile because of non-mentioning of his caste and because he did not say that they were assaulted only because of their castes.He has stated that he was also assaulted by the accused persons.Monu has been examined as PW-4, who is nephew of the deceased Buddhsen.He has also stated to have seen the appellants committing the offence.Bhailal Chamar (PW-5) has also stated that he knows all the accused persons, who came from a tuck and then committed the offence by forcefully entering into the house of Buddhsen Saket.Similarly Chhotelal (PW-6) has also supported the case of the prosecution and has also stated to have seen the appellants causing injuries to Jirraua on whose private parts an injury by rod was caused.Vidhinarain (PW-7) the another prosecution witness has also supported the case of the prosecution.Kaushal Prasad Saket (PW-8), aged about 10 years, who happens to be another nephew of the deceased has also stated that in the morning when he was playing outside his house, all the accused persons came to his house broke open the door and killed his uncle Buddhsen.He has also stated that when the assault was being made, he slipped below a cot and has seen the entire incident.Ratan Saket (PW-3 Cr.A. No.1261 of 20079), aged about 15 years, whose house is adjacent to the house of deceased Buddhsen has also supported the case of the prosecution.Ramvishal (PW-10) was declared hostile.Gulabkali (PW-11) is the daughter of deceased Buddhsen.Apart from confirming the incident she has also stated that she was assaulted by Sahodar with the aid of Tangi.Savitri (PW-12) is the daughter-in-law of the deceased.She has also seen the incident and has deposed the same that the accused persons came to her house and caused injuries.Kiran (PW-13) has also supported the case of the prosecution.Asha (PW-14) is the daughter-in-law of the deceased.She has supported the case of prosecution and stated that Ghanshyam assaulted her by Tangi and Chhotani caused injuries by lathi.4 Cr.A. No.1261 of 2007Dr. Achla Tripathi (PW-16), who has examined Jirraua (PW-2), has also confirmed that Jirraua had received injury on her pubic area which was bleeding.The medical report is exhibited as Ex.Vivek Gupta (PW-17) is the Naib Tehsildar who had recorded the statement of Jirraua when initially it was apprehended that she might succumb to injuries.R.D.Dwivedi (PW-18) is the Sub Inspector, who recorded the FIR (Ex.1) as well as Dehati Marg Intimation (Ex.P-15) while the deceased Buddhsen was being taken to the hospital.He stated that he referred Radhiya, Ratan and Asha for medical examination.R.P. Shukla (PW-19) is the Scientific Officer of scene of crime Unit Rewa.He has proved that on the southern wall of the house there were marks of pallets and some pallets were recovered from the house of the deceased.Mewalal Dubey (PW-21), who is the Head Constable has confirmed that he has sent the injured persons Jirraua, Savitri and Devnarain for medical examination.Kashi Prasad Kushwaha (PW-25) who is a seizure witness, has been declared hostile.He has stated that nothing was seized before him and no accused persons informed the police regarding any weapons which were recovered at their instance.7. PW-26 is Dr.V.N.Satnami, who was posted as Medical Officer at Mauganj District Rewa has conducted the postmortem of the deceased.He has stated that the deceased Buddhsen had received as many as nine injuries which are mentioned as under :-pksV dz0&1 dqpyh ?kqlh gq;h Fkh rFkk QVh pksV flj ij nkfgus rjQ Fkh tks 6x3x efLrd dh xgjkbZ rd ftlesa [kwu cg jgk FkkA pksV dz0&2 yky [kjkspnkj pksV flj ds lkeus nk;s rjQ 4x3 ls0eh0 dh FkhA pksV dz0&3 dVh gq;h pksV nk;s dqguh ij ihNs dh rjQ 4x2xpeMh dh xgjkbZ rFkk yky jax dk [kwu dk FkDdk yxk gqvk FkkA pksV dz0&4 yky [kjkspnkj pksV ck;s dksguh ij ihNs dh rjQ 6x4 lseh0 dh FkhA 5 Cr.A. No.1261 of 2007 pksV dz0&5 yky [kjkspnkj pksV xnZu ij nkfgus rjQ 2x1 ls0eh0 dh FkhA pksV dz0&6 yky [kjkspnkj pksV nkfgus iSj 4x3 ls0eh0 dh FkhA pksV dz0&7 yky lwtunkj pksV ihB ij nkfgus rjQ 8x3 ls0eh0 dh FkhA pksV dz0&8 yky lwtunkj pksV ihB ij ck;s rjQ 9x2 ls0eh0 dh FkhA pksV dz0&9 yky [kjkspnkj pksV nkfgus rjQ dej esa 4x2 ls0eh0 dh FkhA The first injury has resulted in fracture of the head, which was the cause of death of deceased Buddhsen.He has also examined Jirrua (PW-2) and found the following injuries :5 Cr.A. No.1261 of 2007pksV dz0&1 QVh gq;h pksV nkfgus dyk;h ij 8x6 ls0eh0 dh Fkh tks gM~Mh dh xgjkbZ rd FkhA rFkk gkFk dh dykbZ Vs<h gks x;h FkhA pksV dz0&2 yky lwtunkj pksV nkfgus Hkqtk ij 8x6 lseh0 dh FkhA rFkk gM~Mh dks Mqykus ij vkokt vkrh Fkh tks fMLyksdsVsV FkhA pksV dz0&3 yky [kjkspnkj pksV ck;s tkap ij 1@x2 ls0eh0 dh FkhA pksV dz0&4 QVh gq;h pksV ckg~; tuuax ij 10x8 ls0eh0x2 ls0eh0 dh Fkh ftlesa yky jax dk [kwu dk FkDdk yxk FkkA He also examined Radhiya (PW-1), who had received following injuries :pksV dz0&1 yky [kjkspnkj pksV ck;s vxzHkqtk ij 4x3 ls0eh0 dh FkhA pksV dz0&2 yky lwtunkj pksV ihB ij ck;s rjQ 6x4 ls0eh0 dh FkhA He also examined Ratan (PW-9), who had received following injuries :,d yky [kjksp nkj pksV nkfgus ,Mh ij 3x2 ls0eh0 dh FkhA He also examined Savitri (PW-12), who had received following 6 Cr.A. No.1261 of 2007 injuries :6 Cr.A. No.1261 of 2007pksV dz0&1 [kjkspnkj lwtunkj pksV nkfgus dyk;h ij Fkh 8x6 ls0eh0 dh FkhA pksV dz0&2 dVh gq;h pksV ck;s iSj ds xkaB esa 3x2 ls0eh0 dh Fkh tks gM~Mh dh xgjkbZ rd FkhA pksV dz0&3 yky lwtunkj pksV ck;s iqV~Bs ij 7x5 ls0eh0 dh FkhA He also examined Asha (PW-14), who had received following injuries :pksV dz0&1 dVh gq;h pksV nk;s rjQ xnZu ij 3x1x-5 ls0eh0 vkdkj dh Fkh] ftles yky jax dk [kwu dk FkDdk yxk FkkA pksV dz0&2 yky lwtunkj pksV nkfgus dU/ks ij 10x6 ls0eh0 dh FkhA pksV dz0&3 yky lwtunkj pksV nkfgus Hkqtk ij 5x2 ls0eh0 dh FkhA pksV dz0&4 yky lwtunkj pksV nkfgus tka?k ij 6x3 ls0eh0 dh FkhA pksV dz0&5 yky lwtunkj pksV ck;s iSj ij 8x3 ls0eh0 dh FkhA He also examined Gulabiya (PW-11), the daughter of the deceased, on whose person following injuries were found :-pksV dz0&1 yky lwtunkj pksV nk;s dU/ks ij 7x4 ls0eh0 dh Fkh A pksV dz0&2 yky lwtunkj pksV nkfgus tka?k ij 6x3 ls0eh0 dh Fkh A Nothing substantive could be extracted from all these witnesses in their cross-examination.Chhotelal (PW-27) is also a witness of seizure and has been declared hostile.Ramsagar Gupta (PW-28) who is a witness to incident is also declared hostile.7 Cr.A. No.1261 of 20079. Dr.A.K. Mishra (PW-30) is a Senior Medical Officer and has examined Jirraua (PW-2).He has stated that Jirraua had received fracture on her right humerus, radius and ulna and has proved the X-ray reports (Ex.P/52, P/53 and P/54).Durgesh Rathore (PW-31) is the Investigating Officer, who has duly corroborated the evidence collected by him during the course of investigation.The defence set up by the accused persons is that the accused Umesh @ Chotani used to park his truck in the Harijan Basti by the side of the house of Guruprasad because there was no road so that the truck could be driven up to the house of Umesh @ Chotani and because of this reason when Umesh, Awdhesh and Baijnath were coming from the truck, at that time the people of Harijan Basti started running and Buddhsen, the deceased also ran into his house struck his head on the door frame and hence he got the head injuries and so far as other injured persons are concerned, they all caused injuries which were self-inflicted.11 Since none has appeared for the appellants, we have heard Shri K.S. Wadhwa, the learned Additional Advocate General with Shri Pradeep Gupta, the learned Panel Lawyer but we have carefully gone through the entire evidence on record and have come to the conclusion that the prosecution has proved its case beyond reasonable doubt.So far as the nature of death of Buddhasen is concerned, the same was homicidal in nature as has been proved by Dr.Although, a suggestion has been given to him that the injury no.1 may be caused if the head is hit by the door but this suggestion is not given to any of the eye witnesses, especially, the PW/1 Radhiabai hence no importance can be attached to such suggestion.Thus, the death of Buddhsen was homicidal in nature.The presence of the appellants on the spot has been duly proved by the witnesses, most of whom were injured and the nature of their injuries is such that their presence on the spot 8 Cr.A. No.1261 of 2007 cannot be denied.The injuries caused by the appellants have also been duly corroborated by the medical evidence.It may be that the witnesses have not attributed each and every injury to any specific appellant but this only gives more credence to their story as the incident took place on 16.3.2006 whereas the commencement of the trial and the examination of witnesses took place from 2.9.2006 which is almost a period of around six months.8 Cr.A. No.1261 of 2007The learned Judge of the Trial court has rightly held that it is not a case where accused persons can be convicted under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and has rightly acquitted the appellants from the offence under Section 3(2)(v) of the SC/ST Act.So far as the witnesses to seizure memos, namely, Kashi Prasad Kushwaha (PW-25) and Chhotelal (PW-27) are concerned, even if they have not supported the case of the prosecution and have been won over, in that case also, the injuries caused to as many as six witnesses and their depositions in the Court are sufficient to bring home the offence of murder and assault.It is pertinent to mention here that even the child witnesses have received injuries and it is rather preposterous to come up with such a defence that the injuries received by the witnesses were selfSo far as the injuries caused to deceased Buddusen are concerned, the explanation as offered by the accused persons that he struck his head on the frame of the door while running into his house is also ridiculous especially when the witnesses have not even been suggested that Buddhesen died due to the injury which he received while running into his house and that other injured witnesses have self-inflicted injuries.Thus, the defence advanced by the appellants is a clear afterthought and cannot be accepted.The FIR in the present case has been 9 Cr.A. No.1261 of 2007 lodged immediately wherein names of all the accused persons were mentioned.Thus it cannot be said that their names have been subsequently added after deliberation to falsely implicate them.The evidence of the material witnesses who were also injured, reveals that the appellants have actively participated in the commission of offence.The case of the prosecution that accused persons forcefully entered into the house of the deceased is also corroborated by Ex.9 Cr.A. No.1261 of 2007So far as the finding of the learned Trial Court regarding attempt to murder of witness Jirraua (PW-2) is concerned, the same cannot be sustained.The learned Judge in para 39 of the judgment has mentioned that the injuries caused to Jirarua (PW-2) were sufficient in the ordinary course of nature to cause death, which is supported by the medical evidence.After perusing the medical evidence in this regard viz. the testimony of Dr. Achla Tripathi (PW-16) and Dr.V.N.Satnami (PW-26), it appears that none of the doctors have mentioned that the injuries were sufficient in ordinary course of nature to cause death.It appears that the learned Judge has arrived at such a conclusion on the basis of the fact that initially a dying declaration of Jirraua was recorded, which may have led the learned Trial Judge to form an opinion that the appellants are also liable to be convicted under Section 307 of IPC.In view of the aforesaid, the conviction of all the appellants under Section 307/149 of IPC awarded by the learned Trial Judge is set aside and in its place they are convicted under Section 326/149 of IPC as there are as many as three fractures caused to Jirraua (PW-2) and sentenced to suffer five years' rigorous imprisonment, which they have already undergone until now.So far as the conviction of appellants under Sections 148, 302/149, 323/149, 452, 427 and 506-B is concerned, as already discussed herein above, there is no error committed by the learned 10 Cr.A. No.1261 of 2007 Trial Court in convicting the appellants under aforesaid offences.10 Cr.A. No.1261 of 2007In the result, the appeal is partly allowed to the extent as indicated hereinabove.

Cited provisions: Section 149 in The Indian Penal Code; Section 307 in The Indian Penal Code; Section 148 in The Indian Penal Code; Section 323 in The Indian Penal Code; Section 427 in The Indian Penal Code; Section 326 in The Indian Penal Code; Section 452 in The Indian Penal Code; Section 302 in The Indian Penal Code