(Delivered on 18th day of May, 2018) Per J.P. Gupta, J :Criminal appeal no. 1174/2000, 1342/2000 and 2218/2000 have been filed against the judgment dated 20.4.2000 passed by Second Additional Sessions Judge, Rewa in S. T. No.44/97 whereby appellants Suresh and Bindawasi (criminal appeal no. 1174/2000) have been convicted for the offence punishable under Sections 304 Part-I and 323 of the IPC and sentenced to undergo RI for 10 years along with fine of Rs.1000/- each; in default of payment of fine further RI for 6 months and RI for 6 months, respectively and appellant / accused Ramadhar (criminal appeal no.1342/2000) has been convicted for the offence punishable under Section 323 of the IPC and sentenced to undergo RI for 6 months and criminal appeal no. 2218/2000 has been filed on behalf of the State against the acquittal of the respondents / accused relating to the appeal of the charges under Sections 147, 148, 149, 307, 302, 294, 341, 323, 506 Part-2 of the IPC and prayed for convicting and sentencing the accused / respondents of the appeal including accused Bhuvneshwar Prasad, Ramesh Prasad, Bhimsen, Lalmani and Ramkhelawan Patel for the charges for which they were prosecuted.Criminal appeal no.2397/2007 has been filed by appellant Dinesh Prasad Patel against the judgment dated 31.10.2007 passed by Second Additional Sessions Judge, Rewa in separately S. T. No.44/97 whereby the appellant has been convicted for the offence punishable under Section 304 Part-I of the IPC and sentenced to undergo RI for 10 years along with fine of Rs.5000/- in default of payment of fine further RI for 1 year.In brief, the relevant facts of the case are that deceased Koushal Prasad Dubey and eye witnesses of the incident are close 3 relatives.There was a dispute between the appellants / accused persons and the complainant party with regard to the land which was earlier belonging to one Ramsakhi.On 5.7.1996 at about 7 am Rambahore (PW-1) along with his cousin Koushal Prasad Dubey (deceased) and Ansuiya Prasad, and Ganga Prasad (PW-3) and labourer Kalari Kol (PW-6) went to the disputed land situated at village Dihiya, Police station Baikunthpur for cultivating the field whereupon firstly appellants Suresh and Bindawasi came with lathi and assaulted Koushal Prasad, due to which, he fell down.Thereafter, appellant Dinesh came with farsa and assaulted Koushal Prasad and caused injury on his head.When Koushal Prasad made hue and cry, Ansuiya Prasad (PW-2), Ganga Prasad (PW-3) and Rambahore (PW-1) rushed towards him to rescue him and following them, accused Bhimsen, Ramesh Patel and Bhuvneshwar also came with lathi and assaulted them and during incident, other co-accused Ramadhar, Lalmani and Ramkhelawan also reached on the spot and assaulted them and wife of Koushal Prasad namely Vidyawati also reached on the spot, she was also assaulted and caused injury.Rambahore lodged FIR of the incident at Police Station Baikuntpur, District Rewa where crime no. 87/96 was registered for the offence under Sections 294, 341, 323, 506-B read with Section 34 of the IPC and injured Rambahore Sharma (PW-1), Ansuiya (PW-2) and Ganga Prasad (PW-3) were medically examined and condition of Koushal Prasad was serious.He was unconscious.During the investigation it was also found that accused Ramesh and Lalmani were also involved in the incident.After completion of the investigation, charge sheet was filed before the JMFC; Sirmour who on its turn committed the case to the court of Sessions.On transfer, the case was tried by Second Additional Sessions Judge, Rewa where the appellants / accused were charged for 4 the offence punishable under Sections 148, 302 and 302/149, 323, 323/149 (in four counts) and 294 and 506-B of the IPC.In the case appellant / accused Dinesh was absconded and learned trial Court vide judgment dated 20.4.2000 convicted and sentenced the appellants Suresh, Bindawasi and Ramadhar as mentioned earlier and acquitted other co-accused Ramesh Prasad, Lalmani and Ramkhelawan Patel of all the charges and Bhuvneshwar and Bhimsen were convicted under Section 323 of the IPC and sentenced to six months RI and acquitted of the other charge.Both the accused have not filed any appeal against their conviction and sentence.Later on, absconded appellant Dinesh Prasad was arrested and tried and vide judgment dated 31.10.2007 he was convicted and sentenced as mentioned earlier.The defence of the appellant / accused Ramadhar is that on the date of incident he was not present on the spot and other accused persons also took defence about their innocence and further claimed that they assaulted the deceased and the witnesses in exercise of right to defence of the property.Hence, they have not committed any offence.On behalf of appellants Dinesh, Suresh and Bindawasi, finding of the learned trial court have been challenged on the grounds that the prosecution has failed to establish its case beyond reasonable doubt as the statements of so called eye witnesses are full of contradictions and omissions and also against the medical evidence and the circumstances, in which, the incident took place also indicate that the appellants / accused persons assaulted in order to secure their possession over the land in exercise of their right to private defence but the learned trial Court has completely ignored this aspect.The appellants / accused cannot be convicted for commission of offence of culpable homicide as the prosecution has failed to establish that the appellants had any intention or knowledge to cause death of Koushal 5 Prasad and hardly they can be convicted under Section 325 of IPC.It is further submitted that the appeal filed on behalf of the State against the judgment of acquittal is without any merits.Learned trial court has very seriously and deeply appreciated the evidence coming to the conclusion of the acquittal of the acquitted accused persons namely Bhuvneshwar, Ramesh, Bhimsen, Lalmani and Ramkhelawan and there is no ground to convict them for the offence for which they have been acquitted.Hence, the appeal filed by the appellants / accused be dismissed and the appeal filed by State be allowed as the trial Court has committed grave error in acquitting the appellants / accused from the charges for which they were tried and all the acquitted accused persons be convicted and sentenced for the offence for which they were charged.Having considered the contentions of learned counsel for the parties and on perusal of the record, it is found that in the incident Koushal Prasad died on account of the injuries and Rambahore (PW-1), Ansuiya Prasad (PW-2), Ganga Prasad (PW-3) and Vidyawati (PW-5) also sustained injuries.In this regard, Dr. B. K. Garg (PW-7) has stated that on 5.7.1996 he being an Assistant Surgeon in Civil Dispensary, Baikuntpur examined the aforesaid persons and found following injuries on their person :-Lacerated wound scalp 1"x1/2"x1/4" right side.2. Lacerated wound scalp "x1/4"x1/4" left side.3. Contusion on left shoulder 1x1/2"Simple injury caused by hard and blunt object.Duration was within 6 hours.Ansuiya Prasad (PW-2)Abrasion right fore arm labally middle 1/3 part 1/2"x1/4"Simple injury caused by hard and blunt object.Duration was within 6 hours.Ganga Prasad (PW-3)1. Contusion on right deltoid 1/2"x1/4"Simple injury caused by hard and blunt objection.Duration was within 6 hours.Vidyawati (PW-5)1. Contusion on right hand post 2"x1"Simple injury caused by hard and blunt objection.Duration was within 6 hours.Dr. Pramod Shrivastava (PW-11) has stated that on 11.7.1996 at Medical College, Jabalpur he examined dead body of Koushal Prasad near about 12 O'clock and found following injuries :-Partially healed stitched wound present over scalp on middle part of left parietal region placed anti-posteriorly " label to sagital interior.Scalp is contused on right frontal parietal occipital region and temporal region on both side.Stitched wound is 3x1/2" long.There is depressed fracture of right parietal bone leading to fracture and fragmentation of right partial bone in to 5 pieces.From this fracture the fracture line extending on both sides on lower 7 surface and leading to middle cranial fossa on both sides.Large extra-dural haematoma present on both parieto- occipital and left temporal region.Brain is contused over right parietal lobe upper part and it is located in upper part 1"x1/2"x1/2".Liquefaction of brain started in this area.Fracture of left radius bone of fore arm in lower one third muscularly ward.Partially healed stitched wound in upper part of left leg over standing of tibia, vertical size 1 " long.Period of death was within twenty four hours.Cause of death is cronio cerebral injuries.All the injuries were anti-mortem in nature and could be produced by hard and blunt object and was sufficient to cause death.The wife of the deceased, Vidyawati (PW-5) and Rambahore (PW-1), Ansuiya Prasad (PW-2) and Ganga Prasad (PW-3) have stated that on account of the injuries sustained in the incident took place on 5.7.1996 on their field Koushal Prasad died.Now the question is that whether all the accused persons constituted an unlawful assembly with common object to cause death of the deceased and in furtherance of their common object, all or some members of the assembly caused death of the deceased and also caused injuries to Rambahore (PW-1) Ansuiya (PW-2), Ganga Prasad (PW-3) and Vidyawati (PW-5).Having considered minutely the statements of Ramkishore (PW-4) and Kalari Kol (PW-6) it is found that they are not trustworthy witnesses.Learned trial court has also discarded their statements because Kalari Kol (PW-6) has stated that all the accused persons came together and started beating to Koushal Prasad.Same statement has been given by Ramkishore (PW-4) which is contrary to the prosecution story and Kalari Kol (PW-6) has also stated that he was suffering from blindness and he was not able to identify anybody.Similarly, Ramkishore (PW-4) is not natural witness and on the spot his presence is doubtful.He resides 3 kms.away from the place of incident.He has stated that with a view to getting shaved he was standing in front of the barber shop near the spot but this fact is missing in his police statement Ex.Thus, their testimonies are not creditable.Similarly statement Ex.D/3 Dying declaration of Koushal Prasad is also not trustworthy.But, Dr. B. K. Garg (PW-7) denied the fact that the same was recorded before his presence and on the statement, a note about fitness of Koushal Prasad was made under the pressure of Investigating officer.Therefore, the trial court has discarded this statement and this considered view of the trial court does not require any interference.So far as the statement of other eye witnesses are concerned, they have never stated that all the accused persons came together on the spot and started beating deceased Koushal.Rambahore (PW-1), Ansuiya Prasad (PW-2) and Ganga Prasad (PW3) have categorically stated that while the deceased was going for taking seed, accused Bindawasi, Suresh Patel armed with lathi and Dinesh armed with farsa restrained Koushal and started abusing him and accused Bindawasi assaulted Koushal with lathi on his head then accused Suresh assaulted Koushal with lathi then accused Dinesh 9 assaulted Koushal with farsa on his head and thereafter other accused persons Bhuvneshwar Prasad, Ramesh Prasad and Bhimsen came and when Rambahore (PW-1), Ansuiya Prasad (PW-2), Ganga Prasad (PW-3) tried to save the deceased, accused Dinesh assaulted Rambahore (PW-1) on his head and accused Bhimsen assaulted with lathi on his head and meanwhile accused Ramadhar, Ramkhelawan and Lalmani also came and started abusing them.Vidyawati wife of the deceased also came over there and lay on Koushal Prasad to save him then accused Bindawasi also beaten her with lathi.On making hue and cry, people gathered there and accused person fled away.Thereafter, Rambahore (PW-1), Koushal Prasdad, Ansuiya Prasad (PW-2) and Ganga Prasad (PW-3) went to the Police station where Rambahore (PW-1) lodged report Ex.P/1 and Koushal Prasad was sent to Rewa District Hospital, where he died.Vidyawati (PW-5) however has stated that all the accused persons assaulted his husband but it is clear that she reached on the spot later- on and after reaching her on the spot, nobody assaulted her husband.However, she was assaulted by accused Bindawasi, FIR Ex.P/1 has been lodged by Rambahore (PW-1) which also reflects that except accused Suresh, Bindawasi and Dinesh, other accused persons reached on the spot after falling down Koushal Prasad on account of the injuries caused by Suresh, Bindawasi and Dinesh.This fact categorically establishes that accused Suresh, Bindawasi and Dinesh at the time of assaulting the deceased were not member of unlawful assembly with other accused persons and they did not act in furtherance of common object of unlawful assembly.In the circumstances it is clear that accused Suresh, Bindawasi and Dinesh are responsible for causing death of the deceased they came there and assaulted simultaneously and caused injuries to the deceased which led to his death.As per opinion of the medical expert Dr. Pramod Shrivastava (PW-11), cause of death was head injury of the deceased which was sufficient to cause his death.However, he has not stated that the injury was sufficient to cause death 10 in ordinary course of nature and the death had taken place after 5 to 6 days of the incident.He has also stated that the injury was caused by hard and blunt object.Hence, medical evidence and ocular evidence is contradictory to each other.In such circumstances, the prosecution version cannot be accepted to be correct beyond reasonable doubt.But the aforesaid opinion has no significance as Dr. Pramod Shrivastava (PW-11) has examined dead body after 5-6 days of the incident during which injuries were stitched and were not in the condition to easily find out whether the injuries were caused by blunt object or sharp object.Hence, it cannot be said that there are material contradictions between the medical evidence and ocular evidence.The testimony of the eye witnesses with regard to causing injuries to Koushal Prasad by accused Suresh, Bindawasi and Dinesh is trustworthy and beyond reasonable doubt it establishes that they were author of the death of Koushal Prasad.Now, the question arises whether appellants Suresh, Bindawasi and Dinesh have committed murder of the deceased or culpable homicide.From the record it appears that the deceased and the accused persons are residents of the same village and close relative and there was a land dispute between them and the alleged incident took place when deceased Koushal Prasad and his companion tried to cultivate Raur field and the appellants assaulted the deceased and only one injury was fatal.There is no specific opinion of the medical expert that the injury was sufficient to cause death in ordinary course of nature and no instant death had taken place.The deceased survived 5 to 6 days after the incident.Hence, it cannot be said with all certainty that 11 accused Suresh, Bindawasi and Dinesh assaulted the deceased with a view to commit his murder.However, with all certainty it can be said that they all acted knowingly that by their act death may be caused and the head injury led to death caused by Dinesh; and accused Suresh and Bindawasi had common intention with him as they all came together with weapons and also assaulted him.Hence, all the aforesaid three accused persons may be held guilty for committing culpable homicide of deceased Koushal Prasad sharing common intention of them.The defence taken by the accused persons about exercising right of private defence of their property does not appear to be plausible as there is no evidence that the appellants were in exclusive possession of the land on which the incident was taken place.Hence, his testimony is meaningless with regard to possession over the disputed land.Therefore, the defence is not found to be proved and the learned trial Court has rightly ignored it.As discussed earlier, so far as other accused persons Ramesh and Lalmani are concerned, they reached on the spot after falling of deceased Koushal Prasad on account of sustaining head injury, therefore, they cannot be held guilty for forming unlawful assembly having common object for causing death of Koushal Prasad.Apart from it, the evidence about accused Ramesh and Lalmani with regard to taking part in the incident even later part is also not trustworthy.Their name has not been mentioned in the FIR Ex.Therefore, learned trial Court has not committed any error in holding that the prosecution has failed to prove their participation in the incident.So far as other accused persons Ramadhar, Bhimsen, Bhuvneshwar and Ramkhelawan are concerned, they reached on the spot separately without having common object or common intention, therefore, they can be held guilty 12 for their own individual act.Learned trial court has given benefit of doubt to accused Ramkhelawan as none of the witnesses have specifically mentioned that he caused injury to any member of the complainant party.We also do not find any cogent reason to interfere in the aforesaid finding.On careful reading of testimony of Rambahore (PW-1), Ansuiya Prasad (PW-2), Ganga Prasad (PW-3) and Vidyawati (PW-5) it is established that accused Dinesh also caused simply injury with farsa on the head of Rambahore (PW-1) and co-accused Bhimsen and Bhuvneshwar also caused simple injury with lathi to Rambahore (PW-1) and Ramadhar caused simple injury with lathi to Ansuiya (PW-2) and accused Suresh and Bindawasi also willfully caused injury with lathi to Vidyawati (PW-5).In view of the aforesaid discussions, appellants Suresh, Bindawasi and Dinesh are held guilty for offence punishable under Section 304 Part-II of the IPC for committing culpable homicide of Koushal Prasad and appellants Suresh and Bindawasi are also held guilty for commission of offence under Section 323 of the IPC.They were armed with lathi and have not caused fatal injury.Hence, appellants Suresh and Bindawasi are sentenced to the period already undergone by them in 14 jail as mentioned earlier with the fine of Rs.5000/- each, in default of payment of fine, further 6 months RI.Appellants Suresh and Bindawasi are on bail.Their bail bonds stand discharged.So far as other accused Persons Bhimsen and Bhuvneshwar are concerned, they have been found guilty for causing willfully simple injury to Rambahore (PW-1) and learned trial court has convicted them under Section 323 of the IPC and sentenced to undergo RI for 6 months but they have not filed any appeal and they have already undergone the aforesaid sentence during trial.Therefore, no further order is required to be passed in this regard.So far as accused Ramadhar is concerned, he is convicted under Section 323 of the IPC for causing simple injury to Ansuiya Prasad (PW-2) with lathi.With the aforesaid, the appeals filed by the accused persons are partly allowed and the appeal filed by the State is dismissed.A copy of this order be sent to the trial court and the jail authorities concerned for information and necessary action.2.5.4.20=a650f9cd964b96221568096ac01ab1bf0 19e0b76f6fc652f893c6324a2f64a5a, PAROUHA cn=JITENDRA KUMAR PAROUHA Date: 2018.05.21 11:32:24 +05'30'

Sections cited: Section 323 in The Indian Penal Code, Section 304 in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 149 in The Indian Penal Code, Section 148 in The Indian Penal Code, Section 294 in The Indian Penal Code, Section 341 in The Indian Penal Code, Section 506 in The Indian Penal Code, Section 34 in The Indian Penal Code, Section 325 in The Indian Penal Code, Section 307 in The Indian Penal Code, Section 147 in The Indian Penal Code