.<€^<.-..., .^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH Coram:- Hon'ble Mr. T.P. SHARMA SB Hon'ble Mr. R.L. JHANWAR, JJ. CRIMINAL APPEAL N0. 107/2006 APPELLANTS In Jail RESPONDENT 1. SUKHRAM S/o Jagannath Aged about 40 Yrs. Resident of Bade Parali, P.S. Durgukondal, District Kanker, (C.G.) 2. BAIJURAM S/o Sukhram Aged about 24 Yrs. Resident of Bade Parali, P.S. Durgukondal, District Kanker, (C.G.) 3. JAGDER S/o Bhosaram Aged about 45 Yrs. Resident of Manghur, P.S. Durgukondal, District Kanker, (C.G.) 4. HIRALAL S/o Jageshwar Aged about 38 Yrs. Resident of Manghur, P.S. Durgukondal, District Kanker, (C.G.) Versus STATE OF CHHATTISGARH Through Police Station Durgukondal. And CRIMINAL APPEAL N0. 845/2006 APPELLANTS In Jail 1. 2. 3. SHYAMLAL S/o Jageshwar Aged about 33 Yrs. Resident of Manghur, P.S. Durgukondal, District Kanker, (C.O) RAUURAM S/o Sukhram Aged about 22 Yrs. Resident of Bade Parali, P.S. Durgukondal, District Kanker, (C.G.) DEVAN S/o Jageshwar Aged about 30 Yrs. Resident of Bade Parali, P.8. Durgukondal, District Kanker, (C.G.) Versus RESPONDENT OF STATE Through Durgukondal, (C.G.). CHHATTISGARH Police Station District Kanker, (CRIMINAL APPEALS UNDER SECTION 374(2) OF THE CODE QF CRIMINAL PROCEDURE, 19731 j^"?- ^^. s,^" "* '•^^ Present: Mr. Prakash Tiwari, Advocate with Mr. Akhilesh Mishra, Advocate for the appellants (In Cr. A. Nos. 107/2006 & 845/2006). Mr. D.K. Gwalre, Govt. Advocate for the State/respondents. ORAL-JUDGMENT (Passedon 10/02/2011) The iudgment ofthe Courtwas delivered bv T.P.Sharma, J.:- By the criminal appeal Nos. 107/2006 & 845/2006 filed by appellants against the common judgment of conviction and order of sentence dated 22/12/2005 passed by Additional Sessions Judge (F.T.C.), Kanker in sessions trial No. 337/2004 are being disposed of by this common judgment. Vide aforesaidjudgment ofconviction and order of sentence dated 22/12/2005 learned Additional Sessions Judge (F.T.C.), Kanker after holding the appellants guilty for formation of unlawful assembly armed with deadly weapon causing culpable homicide amounting to murder of Budhram and causing simple injury to Badluram, Santuram, Ramsheela & Sukarobai in furtherance, of common object of unlawful assembly, convicted the appellants Shyamlal and Sukhram under Section 147, 148, 323/149 8& 302 of the Indian Penal Code and sentenced rigorous imprisonment for 6 months, rigorous imprisonment for 6 months, rigorous imprisonment for 6 months & imprisonment for life with fine of Rs. 500/-, in default of payment of fine amount, additional rigorous imprisonment for 6 months each and convicted the appellants Devan, Baijuram, Jagder & Hiralal under Sections 147, 148, 323/149 8& 302/149 of the Indian Penal Code and sentenced rigorous imprisonment for 6 months, rigorous imprisonment for 6 months, rigorous imprisonment for 6 months & imprisonment for life with fine of Rs. 500/-, in default of .y'f^ ^^.. T ^^. ^r'.. €) payment of flne amount, additional rigorous imprisonment for 6 months each and convicted the appellant Raijuram under Sections 147, 148, 452, 323/149 8& 302 of the Indian Penal Code and sentenced rigorous imprisonment for 6 months, rigorous imprisonment for 6 months, rigorous imprisonment for 6 months, rigorous imprisonment for 6 months & imprisonment for life with fine of Rs. 500/-, in default of payment of fine amount, additional rigorous imprisonment for 6 months respectively. Court below has directed to run the sentencesconcurrently. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellants, Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. As per case of the prosecution, in brief, on fateful night of 22/07/2004 at about 10:00 P.M. all the appellants armed with deadly weapon went to the house of Budhram and with intent to cause death of Budhram they caused repeated injury to him and caused his instentenously death. During course of causing injury to Budhram, they also caused simple injury to Badluram, Santuram, Ramsheela & Sukarobai. PW1 Sukarobai wife of deceased Budhram went to the Police Station on second day and lodged marg intimation vide Ex. P-1 and First Information Report vide Ex. P-2. Investigating Offlcer left for scene of occurrence and after summoning the witnesses vide Ex. P-3. Inquest over the dead body of deceased Budhram was prepared vide Ex. P-4. Spot map was prepared vide Ex. P-5. Dead body of Budhram was sent for autopsy to Community Health Center, Durgukondal. PW11 Dr. Domeshwar Singh conducted autopsy vide Ex. P-41 and found following injuries:- //^^ ^ (i) Swelling over face. (ii) Multiple contusions over chest and other part of the body. (iii) Swelling in the scrotum. (iv) Fracture on 10th 8& 11th rib. (v) Fracture on right upper limb of elbow region. (vi) Rupture of liver. Death was homicidal in nature. 5. All the appellants were taken into custody. Appellant Hiralal made discloser statement of stick yide Ex. P-13, same was recovered at his instance vide Ex. P-14. Appellant Devan made discloser statement of stick vide Ex. P~15, same was recovered at his instance vide Ex. P-16. Appellant Raijuram made discloser statement of stick vide Ex. P-17, same was recovered at his instance vide Ex. P-18. Appellant Baijuram made discloser statement of stick vide Ex. P-19, same was recovered at his instance vide Ex. P-20. Patwari prepared spot map vide Ex. P-29. Injured Badluram, Santuram, Ramsheela & Sukarobai were sent for medical examination, vide Exs. P-32, P-34, P-36 8& P-38. They were examined by PW11 Dr. Domeshwar Singh vide Exs. P-33, P- 35, P-37 & P-39 and found simple injuries over the body of Badluram & Santuram but no visible injuries were noticed on the body of Ramsheela & Sukarobai. 6. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Bhanupratappur who in turn committed the case to the Court of Sessions, Jagdalpur from where learned Additional Sessions Judge (F.T.C.), Kanker has received the case on transfer for trial. ^. L 7. In order to prove the guilt of the accused/appellants prosecution examined as many as 14 witnesses. Accused/appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them and innocence and false implication in crime in question is claimed. They have examined defence witness DW1 Tulsiram who has tried to show no incident took place at the time of alleged incidence. 8. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge (F.T.C.), Kanker has convicted and sentenced the accused/appellants as aforementioned. 9. Mr. Prakash Tiwari with Mr. Akhilesh Mishra, Advocates for the appellants and Mr. D.K. Gwalre, Govt. Advocate for the State/respondents are heard. Judgment impugned and record of the Court below perused. 10. Learned counsel for the appellants Mr. Prakash Tiwari with Mr. Akhilesh Mishra vehemently argued that m the present case, although prosecution has examined PW1 Sukarobai, PW2 Santuram, PW3 Ramsheela, PW4 Budluram 8& PW7 Seetabai as eyewitnesses and injured witnesses but they are relative witnesses, their evidence does not inspire confidence and trustworthy. As per their evidence, incident took place at dark night, there was no any facility for light, they have not seen the incident therefore, their evidence cannot be taken into consideration for conviction of the appellants that too for commission of heinous offence of murder. 11. Learned counsel for the appellants further argued that even as per case of the prosecution, on account of dispute relating to marriage negotiation, appellants went to the house of Budhram (since deceased) and caused injury by stick, hands & fits to him ^? ^;- .^s^" ^ c. f3t but when Budhram become unconscious then all appellants took him and tried to provide water to save his life shows that they have not caused any injury with intent to cause his death. They have not formed any unlawful assembly therefore, if the evidence of aforesaid witnesses are considered then even case of the appellants Devan, Baijuram, Jagder & Hiralal does not travel beyond the scope of under Section 325 read with Section 149 of the Indian Penal Code and act attributed to appellants Shyamlal, Sukhram & Raijuram does not travel beyond the scope of under Section 304 Part-IIofthe Indian Penal Code. 12. Learned counsel for the appellants placed reliance in the matter of Vishnu Kol Jeevan Kol v. The State of Madhya Pradesh thr P S Kuthala1 in which High Court of Madhya Pradesh has held that after considering the injury and intention convicted the appellant under Section 304 Part-II read with Section 34 of the Indian Penal Code and sentenced rigorous imprisonment for 5 years with fine ofRs. 2000/-. 13. On the other hand, learned counsel for the respondents/State opposed the appeals and submits that firstly, all the appellants had gathered, they went to the house of deceased Budhram at 10:00 P.M. i.e. at odd hours, they were holding weapon, they have caused fatal injuries including rupture of liver and caused death of Budhram and also caused simple injury to other complainants shows grave intention of causing murder of Budhram. After appreciating the evidence available on record learned Additional Sessions Judge (F.T.C.), Kanker has rightly convicted and sentenced the appellants as aforementioned. 1 2009 LawSuit(MP) 130 ,^^ ^' I ^^"-^ .^iz-~^: c 14. In order to appreciate fhe argument advaiiced on behalf of tlie parties, we have exaoinied tlie evidence addiiced on bchalf of the prosecution. 15. In tlie presenf case, homicidal death as a re.sult of fatal mjury found over flie body of Bzidhrasii has not been substaatially disputed 011 behalf-ofthe appellaats 011 tlie oth.er haad/ ofheiwise also established by the evidence of PW11 Dr. Domeshwar Siagh aad aiitopsy report Ex. P-41. Death ofBudhramwas homicidal m uature. Evidence of PW11 Dr. Domeshwar Siagh aiid niedical examination report Exs. P-33, P-35, P-37 & P-39 are sufficient for drawiiig aa. m.ference that srmple iiijuiy has been caused to co- complamaiit Badluram, Saiitiiram, Ramsheela & Sukarobai. 16. As regairl th.e complicity of appeUao.ts in. criine ui question, as per evidence of PW1 Sukarobai, PW2 Saiiturain./ PW3 Rainsheela, PW4 Budluram injured witoesses & PW7 Seetabai eyewitness, prese.nt appellaats went to fhe house of Budhi'aia, tiiey were holding stick on accoiuit of dispute relatiag to m.aiTiage negotiation fhey assaulted Budhraai and caused multiple iojuries. They have also assaulted PW1 Sukarobai, PW2 Saiituram, PW3 Ramsheela & PW4 Badlurain and caused simple ixijur}^ to tliem.. Defence has cross-examiiied fliese witiiesses at length iii whicli tliey liave aclraitted tliat iacident took place at dai'k uight, visibility was vexy poor actuaUy tiiey have not seexi who has caused iojuiy by which weapon upon which part of tlie body but the fact reinaia fhat tliese witaesses are iiijured witaesses aiid have seen tlie io.cident froin close distaiice niay about 1 or 2 feet, appeUaiits ai'e not uukuown to tlieni. Witnesses were haviiig sufficient opportunit}r to see. tlie appenaiits who are known to tliem. In case. tiie iiicident took place io. dark night, ;-^--.. ., .^^^ '."^ ^^yr^-.^S l:1 ^i^^;,:^. 1•%. ^^^ 1 (:.. 8 persons are able to identify the known persons. Therefore, on account of darkness or non-availability of light evidence of the witnesses cannot be discarded. Evidence of aforesaid witnesses clearly reveal that between 10:00-11:00 P.M. at odd time all fhe appellants went to the house of Budhram, they were holding stiek, there was no propriety for their to visit the house of Budhram that too with deadly weapon shows their.intention. 17. As per evidence of PW1 Sukarobai, marg intimation Ex. P-1 & First Information Report Ex. P-2, when Budhram become unconscious then these persons/appellants have tried to provide water shows that they have tried to save the life qf Budhram who died aftenvards. This part of evidence reveals that these appellants have not caused any injury with intent to cause the death of Budhram but on account of sensitive issue i.e. marriage negotiafion which was fmally broken, they have caused injury to Budhram with intent to teach him lesson. They have not caused any fatal injury to other complainants although they were having sufflcient opportunity. to cause such injury also supports the same intention but at the time of causing such injury, fracture of ribs, hands and rupture of liver, they were knowing that by their act Budhram may die. Gathering of appellants with weappn at odd time is also sufflcient to establish the fact that appellants have formed unlawful assembly having its object for causing sufflcient injury to teach the lesson to Budhram and they were also having knowledge that by their act whtch they have ultimately caused Budhram may die. Aforesaid act of the appellants clearly reveals that their acts are punishable under Sections 147, 148, 323 read with Section 149, 304 Part-II read with Section 149 ofthe Indian Penal Code in addition to the act of It.-gfe.l ^. %. ^*: ®<,^; "^y^ ~^^....^5^: '^•^^^%<" s\ L(:-..- .^ 9 Raijuramp punishable under Section 452 of the Indian Penal Code. While convicting and sentencing the appellants learned Additional Sessions Judge (F.T.C.), Kanker has not considered the aforesaid circum^tances specially providing water to Budhram with a view to save his life and thereby committed an illegality. 18. For the foregoing reasons, criminal appeal Nos. 107/2006 & 845/2006 are partly allowed. While maintaining the conviction and sentence of the appellants under Sections 147, 148 & 323/149 of the Indian Penal Code and conviction and sentence of the appellant Raijuram under Section 452 of the Indian Penal Code. Conviction of the appellants Shyamlal, Sukhram & Raijuram under Section 302 of the Indian Penal Code and conviction of the appellants Devan, Baijuram, Jagder 85 Hiralal under Section 302 read with Section 149 ofthe Indian Penal Code is altered into under Sections 304 Part-II and 304 Part-II read with Section 149 of the Indian Penal Code. Considering the circumstances in which incident took place, they are sentenced rigorous imprisonment for 5 years with fine of Rs. 500/- each. Appellants Devan, Baijuram, Jagder & Hiralal are in bail, they shall surrender themselves immediately before the Additional Sessions Judge (F.T.C.), Kanker for servring remaining sentence imposed upon them. Appellants Shyamlal, Sukhram & Raijuram are in custody, they be released forthwith, if not required in any other case. Sd/- T.P.Sharma Judge Sd/- R.L. Jhanwar Judge -Tk