9 v HIGH COURT OF CHHATJTSGARH AT BILASPUR x DIVISION BENCH: N HON. MR. DHIRENDRA MISHRA & HON. MR. R.N. CHANDRAKAR‘ JJ CRIMINAL APPEAL NO.612 OF 2003 APPELLANTS 1. Vipa‘r Ram, S/o Phadur‘am Lodhi, aged 41 (In Jail) years, 2. Ramnafh S/o Sundar Lal, aged 33 years, 3. Jagur‘am, S/o Gangaram, aged 50 year's. All fhe appellanfs are R/o Village Dodhapur', Police Sfa’rion Pa’rhriya, ' Disfr‘icf Bilaspur (C6) Vs RESPONDENT STafe of Chha’rfisgar'h Through STaTion House Officer, Pafhriya, District Bilaspur (CG) Present Mr. V.C. Of‘ralwar and Mr. Malay Shrivasfa‘va; learned counsel for fhe appellants. Mr. Ashish Shukla, learned Governmem‘ Advoca’re for The Sfafe. Mr. PKC Tiwari, learned 5r. Advocate with Mr. Shashi Bhushan, learned counsel for the objector. J U D G M E N T (Delivered on gJ_. 10. 2009) Dhirendra Mishra J; 01.The appellants have preferred this criminal appeal under Section 374 (2) of the Cr.P.C. against the judgment of conviction and grder of sentence dated 12.5.2003 passed in 5.T. No.96/02 whereby the learned III Additional Sessions Judge, FTC, Mungeli, District Bilaspur has convicted the appellantsunder Sections 294, 506(3), 323/34 of the IPC and'sentenced each of them to undergo RI for three months, RI for five years, pay a fine of Rs.1000/—, in default thereof, to undergo additional RI for four ,,\m9nths; RI for one year and pay a fine of Rs.500/-, in default g \ Thereof, f0 undergo additional RI for' fwo mon’rhs respec‘l‘ively. AII fhese sem‘ences have been dirgcfed To run concurren‘l’ly. 02.Br'iefly sTa‘red, allega‘rions against ’rhe appellan’rs are that on 20.7.2001 on The eve of Hariyali festival a’r abouf 5 pm one Ramchondr‘a Lodhi was r'e’rur'ning from field. The appellonfs and Moujiram Lodhi fil’rhily abused him in ’rhe name of his moTher and sisfer and assaul’red him wifh IaThi on his Ief’r elbow. Appellanf Vipafr‘am was holding axe, he also chased him wi’rh an infen‘rion to cause his death. Ramchandr‘a enfered inside his house and came ou’r with a sword on the 6a/I’, whereupon appellants and Moujiram assaulted him on his head, hand, leg and back, as a result, he sustained injuries. On hearing his shouts, his brother Tarachand ' came to save him, whereupon he was also assaulted on head, left wrist and right ear by Ramnath and Jaguram. The incident was witnessed by Bhagwan Singh, Shivkumar and others. Ramchandra lodged report on 20.7.2001 at abdut 11.30‘hours vide EXP/3. Injured Ram'chandra and Tarachand were sent for medical examination to Primary Health Center, Pathariya, where Dr. PK Singh gave their medico legal examination reports of EXP/7 and P/8. 03.After completing investigation, charge sheet was filed against the accused/appellants in the Court of learned Judicial Magistrate First Class, Mungeli. $ince in the same incident, Moujiram—brother of appellant No.1, ’wasvmurdered and a counter case was registered against Ramchandra and Tarachand under Section 302 of IPC, the instant case, through triable by Magistrate First Class, was committed to the Court of Sessions Judge, Bilaspur, from where the same was received on transfer for trial by the learned Additional Sessions Judge. O4. Learned trial Court after hearing counsel for the respective parties, relying upon the testimony of Ramchandra (PW-5), Tarachand (PW-7), Ghanaram (PW-1) and Bhangwan Singh (PW—2), l ' The assault, whereupon i’r fell on ‘rhe head of Moujiram. He was confronted with his diary s’rafemenf of Ex.D/1, wherein he had sfafed fha’r Ramchandm was filfhily abusing af‘rer consuming liquor and he came wh‘h a sword. However, he has denied having made any such s’ra‘iemenf To the police in his police sia'l‘emenf of Ex.D/1. 08.PW-2 Bhagwan Singh, has also depOSed ’rha’r on The daie and Time of incidenf he saw appeiian’rs and Ramchandra engaged in arguments. Moujiram assauHed Ramchandra wi'rh a bamboo stick of Gad/1 as a result, Ramchandra sustained injuries over head. Moujiram was abusing him in the name of his mother and he was also threatening and shouting that he will tear him. O9.PW*~5 Ramchandra, the complainant, has deposed that on the date and time of incident, he was returning home from field, at that time Moujiram was sitting before his door and he (Moujiram) objected as to how his father could manage the affairs of village and ask the Kotwar to make announcement for protection of crop from cattle. Moujiram abused him in the name of his mother and sister, whereupon he also retaliated by using the same words. Hearing the commotion, Jagu, Ramnath and Karan reached there and they chased him and assaulted. Moujiram assaulted him with the backside of axe on his head, whereas Vipatram assaulted him on his head. Karon came with sword from his house and threatened that they would kill him. In the meanwhile, Tarachand alsa came on the spot, he was assaulted by Ramnath and Jagoram, as a result, he sustained injuries on his left wrist. Koran tried to assault him by sword, however, assault landed on the head of his father Moujiram. 10.PW-7 Tarachand has also given similar version in his deposition before the Court. 11. From close scrutiny of the evidence of aforesaid witnesses, we find substance in the arguments of Shri Ottalwar that there is no ’a‘i l evidence available on record To show fha’r ’rhe fil‘rhy abuSes hur‘Ied i, by ‘rhe appellam‘s caused annoyahce ’ro The public a’r large, which is a sin qua non for convicfing The appellants under Sec’rion 294 of The IPC. For 'lhe purpose of convic‘l'ing The appellants under Secfion 506, ParT-II of IPC, mere outburst of the accused at the time of assault that he will kill the injured will not attract Section 506. More so, where the injuries actually caused are not grievous and are not caused on a vital part of the body of the injured, the alleged threatening words are to be understood in the context of the circumstances, in which they were uttered. In the facts and circumstances of the present caSe, where in the counter case complainant and his brother were also prosecuted for the offence punishable under Section 302/34 for causing homicidal death of accused Moujiram (since deceased), on the basis of overall evidence available on record, we are of the-opinion that the trial Court was not justified in convicting the appellants under Section 506, Part-II of IPC and sentencing them to undergo RI for five years. However, taking into consideration that the allegations of assault by the appellants find medical corroboration, as complainant Ramchandra and his brother Tarachand sustained corresponding injuries on their persons as proved by Dr. PK Singh, we are of the opinion that their conviction under Section 323/34 is proper. 12.0n the basis of aforesaid diScussions, appeal is partly allowed. Conviction of the appellants under Sections 294 and 506, Part-II of the IPC and sentence imposed thereon, are set aside, They are acquitted of the aforesaid charges. However, they are convicted under Section 323/34 of IPC. 13.From the record it appearsnthat the appellants were taken into \ custody on 12.5.2003 and they were released on bail vide order l / l K ‘gy ‘ x dated 29.5.2003 by fhis Court In These circumsfances, we ar'e of The opinion fha’r ends of jusfice would be served if fhe appellam‘s are senfenced To undergo RI for a period already undergone by Them and pay a fine of Rs.1500/- each and in defaulT of paymenT of fine, To undergo RI. for Three monThs. The appelIanTs are on bail, Their bail bonds shall sTand discharged and They need noT surrender, in case They deposiT The fine imposed on Them, if noT ,d_ M A\ l @ already deposiTed. j, l ~77) a Sd/- ‘ l DERENDRA MISHRA l Judge l SW- RN. Chandrakar‘ Judge