,S:il«""»<^ »'. illt HIGH COURT OF CHHAmSGARH ATBILASPUR Criminal Anneal No.822/2005 APPELLANTS (In jail) Sincedtd.04.IO. 2002 1 Rajesh Bagga, age 35 years, S/o Late Pratap Bagga, R/o Raut Para, o^ Bijapur, P.S. Bijapur, District S. ' ^ Bastar, Daiitewada(CG) 2 Ravishankar Bagga, age 35 years, S/o Late Pratap Bagga, R/o Raut Para, Bijapur, P.S. Bijapur, District S. Bastar, Dantewada (CG) v/s RESPONDENT State of Chhattisgarh, through the Police Station, Bijapur, District Dantewada (CG) APPEAL U/S374 (21 OF TjIB CODE OF CMMINAL PROCEDURE Appearaace: Shri J.A. Lohaai, counsel for the appeUauts. Shri Arun Sao, Goverrunent Advocate for the State. Divisioa Bench:- Hon'ble Shri T.P. Sharma & Hon'ble Shri R.L.Jhaawar.JJ Per T.P.Sharma, J. ORAL JUDGMENT (17.9.2010) 1. ChaUenge ru this appeal is to thejudgment ofconviction aud order of sentence dated 19.7.2005, passed by fhe Additional Sessions Judge, District South Bastar, Dantewada (CG) in. Sessious Trial No.98/2003, whereby aad whereunder, the leanied Additioaal Sessions Judge after holdiag the appellaats guilty for commission of culpable homicide amounting to murder of Anwar Beg, atteinpt to inurder of Mohd. Beg aad causiag sunple iajuries to Shaiikar Rao by a sharp edged weapon ia sharmg conunon iutention, convicted the appeUants under Sections 302/34, 307/34 ' • ''"^s, :;:'-*r'\ 1 'LJ/ aad 324/34 offhe IPC aad sentenced to undergo imprisoninent for Ufe, R.I. for 5 years aad R.\. &r 1 year respectively. 2. The conviction is iiupugned on the ground thatwithout any iota of evidence, fhe leamed Additional Sessions Judge has l<.f. convicted aad sentenced the'f;appel]aiits as aforeinentioned aad fhereby coiiuuitted UlegaU.ly. - 3. As per case ef prosecution, on. fatefal day of 3.10.2002, at about 8.30 pia Rajesh Baggawent to the Betel shop of Mohd. Beg (PW-1) for purchasiag Gutkha. Deceased Anwar Beg was present ui fhe house of Mohd Beg. Shaokar Rao was residiug in fhe house of Rajesh Bagga. Smt. Amirun Begam (PW-3) wife of Mohd Beg refused to open ttie shop and give Gufkha on credit, on whi.ch, soine altercation took place between Smt. Anurun Begam (PW-3), Mohd. Beg (PW-l) aad ftie appeUants. AppeBant Rajesh Bagga caught hold of Mohd. Beg aad caUed his brofher, Ravi Shankar Bagga. He caiae wifh krufe and assaulted Anwar Beg by the koife and caused fatal injuiy to Mohd. Beg, when Anwar Beg cam.e to save his brofher Mohd. Beg. He caused iujuiy to Anwar Beg on fhe abdoinen. When Anwar Beg caBed for help to Shaakar Rao, he also assaulted to Tnm. They immediately went to PoUce Station aad lodged fhe FIR vide Ex. P/5. Dr. Smt, J. Gupta (PW-6) examiaed Mohd. Beg vide Ex. P/ 10 and foitad foUowuig symptoins i. SiaeU of Uquor w^s comiag from fhe breathe of Mohd. Beg. ii. One stitehed wound was fouad on left ear. iii. One stitched wound was found over right scapular region. • iv, One stitehed wound was found over left scapular region. v. One stitched wound was found over tds left hand. "^^•.^f. 1 / Injured Shankar Rao was also exaxuuied by Dr. R.L. Gangesh vide Ex. P/11 aad found one wound of 5 '/z " over his scapular region. He has also examiaed Anwar Beg vide Ex. P/12 and found foUowiag sym.ptorus : i. He was in semi conscious condition. One stab wouiid was found over his abdoiaen of Ya x Va <i-f-. " over right side. -J! Intestines came ont Irosa. the nijzuy and cut iujuiy was found dn fhe uitestmes. Blood was coming out. The Doctor has also examiaed injured Mohd. Beg vide Ex. P/13 aad found foUowiag iujuries ; i. One incised wound over right supra scapular region of 1 x '/a x */2, ° . Bleediag was comiug out. ii. One iucised wound on aaother scapular region ofVsx u. Ul. Va" IV. One iacised wound over left supra scapular region of 1 X V2 X '/2 ". v. Incised wound on left parietal region of 1 x 'A x Vz ". Mohd. Beg aad Anwar Beg were adinitted to hospital for furfher treataient. During fhe course of treatinent Anwar Beg died. Merg iiitimation was recorded vide Ex. P/15. After suininoiiing witaesses, iaquest over fhe dcad body of Aawar Beg was prepared vide Ex. P/9. Dead body was sent for autopsy to Maharani Hospital, Jagdalpur, where, Dr. Govind Singh conducted autopsy vide Ex. P/8 and fouad one stab wouad of 3 x */2 x 2" over hypo chodrum region. Cause of death was septiceitua. Spot map was prcpared vide Ex. P/l. P^twan prepared map vide Ex, P/2. Clothes of.Shankar Rao were seized vide Ex. P/6. Clothes of fhe deceased were seized vide Ex. P/7., Durmg the course oftreatoient on. 4.8.2002, Anwar Beg died. Anwar Beg gave his dying declaration before the Executive Magistrate vide Ex. P/18. Accused persons were taken iato custody. Accused Rajesh Bagga .UUL^^.^^^^^^^ /h\ made disclosure statem.ent ofstick vide Ex. P/19. Itwas recovered at the instance of Rajesh Bagga vide Ex. P/20. Accused Ravi Shanlcar Bagga made disclosure statement ofkiiife vide Ex. P/21, which was recovered at his iastaace vide Ex. P/22 along with blood stauied shirt. Plaia soil aad blood staiaed soil was recovered fiwni •<-i ttie spot along with lungi>'6f the appeUant Ravi Shaakar vide Ex. P/23. Statenients of the witaesses were recorded under Section 161 offhe Code ofCrimiaal Procedurc, 1973 (iu short the Code). 4. After conipletion of investigation, char^e sheet was filed before the J.M.F.C, Dantewada, who in tuni, committed fhe case to fhe Court of Sessions, Jagdalpur, from where, fhe learaed Additional Sessions Judge received fhe case on transfer for trial. 5. In order to prove the guult of the accused/appeUant, prosecution Iias examined as inany as 13 wituesses. Accused/appeUaats were examiaed under Section 313 ofthe Code, where fhey denied the circumstances appearing against fheni, iunocence aad false iiaplication ia crime ia question was claimed. 6. Afier affordiag opportuxuly of hearing to fhe parties, leamed Additional Sessions Judge has convicted and sentenced tiie appeUants as aforementioned. 7, We have heard Shri J.A.Lohaai, leamed counsel for the appeUants aad Shri Arun Sao, leamed Govenuaeiit Advocate for fhe State, judgment uqpugned aad record of the Coitrt below perused. 8. Learaed counsel for fhe appeUaats vehenienfly argued that ftie witnesses Mofad. Beg (PW-1), Shankar Rao (PW-2) iujured witness and Siat. Ainirun Begam (PW-3) eye witaess are disputiag fhat ftie iajuries have been. caused by fb.e appeBants. He submitted fhat the appeUaats have been convicted under Section ">^.. -.•rtf'i«a!l 'i :;li'":"111 ,^.-^" ^ 302/34 for causing inurder of Aawar Beg, but fhey have not coiaHutted fhe murder of Anwar Beg. They bave not iatentionaUy caused the deafh of Anwar Beg. At a spur of moment, they were quarreliag wifh Mohd. Beg and aU of a sudden. Anwar Beg caine to iatervene aad received one iiyuiy fhat too upon fhe abdomen, fherefore, ifttie case of prosec'fation is adinitted to be true then also the act offhe appeUauts does-not travel beyond Section 304 Part I of the IPC. He further argued that appeUaat No.2- Ravi Shaukar Bagga is ia custody siace 4.10.2002 and has completed more fban 7 years. AppeUaat No.l-Rajesh Bagga was ui custody fi-oiu 4.10,2002 tiU 3.3.2006, therefore, he was ia custody for about niore than 3 '/z years. , 9. On fhe ofher haad, learaed couiisel for the State veheuienfly opposed these arguiuents and subniitted that ui the present case, appellaat No.2- Ravishaakar Bagga was holding taaife aad he faas caused fatal injury to Anwar Beg ia sharuig coinmon intentton with appeUant No. 1- Rajesh Bagga aud after appreciating the evidence, learaed Addition.al Sessions Judge has rightly convicted and sentenced fhe appeUants as aforeiiientioned. Court below has not coiiunitted any itlegalily. 10. In order to appreciate argiunente advauced on behalf of fhe parties, we have examiued the evidence adduced on behalf of fhe prosecution. 11. In fhe present case, ttoimcidal deafh as a result of fatal iajiiry found over ftie abdomen ofdeceased Anwar Beg, fatal iujury to Mohd. Beg aad siuiple iajury to Shaakar Rao'iias not been substaatiaUy disputed on behalf of the appellants, on fhe other hand, it is established by~ fhe evidence of Dr. Goviad Singh (PW-4) aad autopsy report Ex. P/8, Evidence ofDr. Smt. J. Gupta (FW-6) and inedical report Ex. P/ 10, evidence of Dr. R.L. Gaugesh (PW-7) f J 3- "~7' 1 aad medical reports Ex. P/ 11, Ex. P/12 aad Ex. P/13 and death of Anwar Beg was honiicidal ui nature; fatal injuiy was foimd on the body ofMohd. Beg; simple uijuxywas fouad to SharLkar Rao. ' 12. As regards coiaplicity ofthe appeUants ia cnme ia question is concemed, fhe convicUon is based on the evidence of iujured witaiesses Mohd. Beg (PW-l).;ji Shaakar Rao (PW-2) and Smt. Aminui Begara (PW-3). Mohd. Beg (PW-1), has deposed that at the time of incident, he was sleeping ia his house. His wife Ainirun Begam (PW-3) was also present ia fhe house. AppeUant Rajesh Bagga came aad demanded Gufkha on credit and it was refused by Aininui Begam, he abused her, then she woke up Wm and quarrel took place between theia. Rejesh Bagga caught hold of huu and • Ravi Shanlcar Bagga canie aad assaulted IIJTD wifh knife aad caused repeated iajuries. He feU down fhen his brother Anwar Beg came to save tiim, but fhe appeMaats also assaulted him over his abdoinen. He was taken to fhe Hospital, where he died dtiruig fhe course of treatment. In cross examiaation, he deuied fhe suggestion fhat he hiiuself has assaulted the appeUaats. Shaiikar Rao (PW-2) was residiag ia the house of Rajesh Bagga and has accoinpanied Rajesh Bagga at the tiuie of incident. He has deposed fhat Rajesh Bagga has assaulted Mohd. Beg aad Aawar Beg by kmfe. Amirun Begam (PW-3) has corroborated the evidence ofMohd. Beg (PW-1) and Shankar Rao (PW-2). 13. Defence has cross examiued fhis witaess at lengfh, but has not been able to eUcit aaytlijng to discredit their testtmony, Evidence offhese witaesses is sufScient to establish aad prove fhe fact that at the time of iueident, Rajesh Bagga was quaireluig wifh fhe coniplauiaat and Ravi Shaakar Bagga assaulted Mohd. Beg aad Anwar Beg by knife over his abdonien, when Aawar Beg cauie to save his brofher Mohd. Beg. Anwar Beg died after 13 days of the uicident while treatinent iu fhe hospital. The evidence adduced .tifWr1^ [i .^^^ ;\1£^: ^ 'h.. ^'"g^ on behalf of fhe prosecution te suf&cient for drawing an inference fhat appeUaut-Ravishaakar Bagga has coiamitted fhe offence uiider Section 307 IPC rel^tuig to shariag couunon intention. wifh Rajesh Bagga. He has also conimitted offence under Section 302/34 offhe IPC in shariag coTnTnon iaten.tion. Definitely, at the tiine of causiag injuiy to Amvpr Beg, they have not iutended to cause his murder. Anwar Beg received iujury by kaife when he cauie out to save his brother aad he died as a result of such injuiy. Even at the time of iiiitial quarrel, Anwar Beg was not present. Rajesh Bagga has not caused any uijuiy to Anwar Beg. The evidence adduced oa behalf of fhe pFosecution is not sufficient for drawing an iriference fhat Rajesh Bagga has caused injuiy to Anwar Beg in sharing comiaon iatention with Ravi ShacLkar Bagga. Definitely, he has shared cominon iutention to cause injury to Mohd. Beg aad Shaukar Rao. Only one iujuiy was found on the abdouien of Axtwar Beg. He was not present at fhe tiiae of iacident. When he came out to save his brother, Mohd. Beg, he was assaulted by fh.e appeUants, which shows that all of a sudden, when he came to save his brother, he received iujury by koife while iriterveniag ttie matter. It was not intended by the appellauts to cause any grave iojury for causiag deatii of Anwar Beg. Therefore, fhe evidence adduced on bebalf of fhe prosecution is sufficient for drawtag au inference that appeUaat Ravi Shaakar Bagga has caused iajuiy to Anwar Beg, but not with iatention to causiag his death. Defmitely, he was havuig kuowledge fhat by causing such injury, he may die. •<; 14. In these cucumstaaces, the act of Rajesh Ba^a does not travel beyond the scope of Section 304 Part I of the- IPC, While couvictmg fhe appeUants, leamed Additional Sessions Judge has not considered the fact aud lunitation of sharmg common intention of Rajesh Bagga rclatiug to fatal injuiy to Anwar Beg aud iutention ssii, i .J / w' f" s of Ravi Shaakar Bagga for causiag death of Anwar Beg, fherefore, coitunitted iUegaUty. •V. 15. On close scrutiny of fhe evidence, we are of the considered view fhat conviction aad sentence of the appellants under Section 302/34 of fhe IPC are not sustainable under fhe law aad it requires consideration. Consequ^liUy, the appeal is pardy allowed. 16. AppeUaat Rajesh Bagga is acquitted of fhe charge under Section 302/34 oftheIPC, iastead he is convicted uader Section 304 Part I of fhe IPC and sentenced impnsonment for fhe period already undergone i.e. from 4.10.2002 tiU today for inore thaa about 7 years aud 10 raonths, which is siifScient. 17. Conviction and seutence of fhe appeUants under Section 307/34 ofthe IPC are bereby mamtaiued, however, fheir sentences are reduced froni 5 years to 3 years R.I. Conviction aad sentence of fhe appellaats iinder Section 324/34 of fhe IPC are hereby niaintained. 18. In fhe result, appeUant No. 1 Rajesh Bagga be set at Ubert}7 at once. AppeUant No.2- Ravishankar Bagga be set at liberty if not required ia aay ofher case. SdA . T.P. Sha^-nia <iu<ige Sd/- R.L. Jhaawar Judge / J: r- ^;