^ ~^\ HIGHCOURT OF CHHATTISGARH. BILASPUR APPLICANT/: (Accused) NON-APPLICANT/: (Prosecution) APPELLANT: (In Jail) RESPONDENTS: Criminal Appeal No.13 of 2002 Samajilal S/o Dadu Ram Sahu aged 48 years, r/o village Hathi Kanar, Distt. Rajnandgaon (C.G.) Versus State of Chhattisgarh Through the District Magistrate Rajnandgaon (C.G.) AND Crjminal ApReaLNo.251 of 2006 Surujlal Yadav, aged about 36 years, S/o Dharam Singh, Resident of Village Hathikanhar, Police Station Ambagarh Chowki, District Rajnandgaon (C.G.) Versus State of Chhattisgarh Through the District Magistrate, Rajnandgaon (C.G.) {Criminal appeals under Section 374 (2) ofthe Code ofCriminal Procedure} Present: Mr. H.B. Agrawal, Senior Advocate with Mrs. Meera Jaiswal, Advocate for the appellants. Mr. D.K. Gwalre, Govt.'Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar. JJ ORAL JUDGMENT (27-6-2011) T.P. Sharma, J: - 1. Since both the above criminal appeals are arising out of the same judgment dated 29-10-2001 passed by the Special Judge, Rajnandgaon, in Special Case No. 134/2000, they are being disposed of by this common judgment. 2. Challenge in these appeals is to the judgment of conviction & order of sentence dated 29-10-2001 passed by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'), Rajnandgaon, in Special Case No.134/2000, whereby & whereunder learned Special Judge after 'yr ''4. 'l'!-.... t c holding the appellants guilty for commission of culpable homicide amounting to murder of Baisakhu Ram in sharing common intention, convicted the appellants under Sections 302 read with Section 34 of the IPC & 3 (2) (v) of the Act on the ground that Baisakhu Ram was member of Scheduled Caste, and sentenced each of them to undergo imprisonment for life & pay fine of Rs.5,000/-, in default of payment of fine to further undergo Rl for one year on both counts. 3. Conviction is impugned on the ground that without any iotaof evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 4. As per case of the prosecution, on 7-7-1999 at about 7 p.m. "^° appellants assaulted Baisakhu Ram (since de'ceased) by burning fuel wood and caused serious injuries. Injured Baisakhu Ram went to the police station and lodged rojnamcha. He was sent for medical examination and treatment. He was examined by Dr. M.P. Mahiswar (PW-11) vide Ex.P-8 and following injuries were found: - (1) Lacerated wound of 1 c.m. x 1 c.m. x % c.m. over upper right lip. (2) Abrasion of % c.m. x % c.m. over right shoulder. (3) Unbearable pain over abdomen (umbilicus part). Injured Baisakhu Ram was referred to Surgical Ward for further treatment. On account of poverty he was not having sufficient money for treatment and, therefore, he went to his house and finally died. FIR was lodged vide Ex.P-2. The Investigating Officer left for the scene qf occurrence and after summoning the witnesses vide Ex. P-5, prepareS inquest over the dead body of the deceased vide Ex.P-6. Dead body was sent for autopsy to Government Doctor, Ambagarh Chowki i/ide Ex.P-9. Dr. M.P. Mahiswar (PW-11) conducted autopsy vide Ex.P-10 and found following injuries: - (1) Stitched wound over lips and abrasion over shoulder. (2) On internal examination, mpture ofstomach of6 c.m. x 2 c.m. and mpture of liver of 3 c.m. x 2 c.m. x 1 c.m.. Mode of death was shock. During the course of investigation, medicines were seized from the spot vide Ex.P-2. Sealed clothes of the deceased were seized vide Ex.P-7. Fuel wood was seized from appellant Suraj vide Ex.P-4. .^a. % ia3s#^a^ ^ A ^" s'!-^~i!!f^ i^!^: /\ c 5. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ambagarh Chowki from where the Speeial Judge, Rajnandgaon received the case for trial. 6. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as twelve witnesses. The accused/appellants were examined under Section«313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 7. After affording opportunity of hearing to the parties, learned Special Judge.convicted and sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Learned Senior Advocate for the appellants vehemently argued that as per case of the prosecution on account of dispute relating to pig meat, co-appellant Suraj, who is in custody since 9-7-99, has caused injury over abdomen of the deceased which was the cause of death of the deceased and after causing such injury the deeeased was alive, he went to the police station & hospital, but after his primary examination & treatment, he was not shifted to the hospital for surgical treatment to save his life on account of his povertyand as a result of such poverty, he died. This shows that appellant Suraj was having sufficient opportunity to kill the deceased, he has not caused fatal injury resulting in instantaneous death of the deceased, but appellant Suraj has caused injury to the deceased to teach him lesson on account of dispute of pig meat. Leamed Senior Advocate further argued that the prosecution has not collected evidence to show the involvement of accused/appellant Samaji in the crime in question, even otherwise, as per the contradictory evidence of witnesses, appellant Samaji was holding Baisakhu Ram at the time of causing injury. The act attributed to appeltant Samaji is separable from the act attributed to appellant Suraj, his act does not travel beyond the scope of causing assault or assisting for causing assault to the injured. Appellant Samaji was in custody from 9-7-99 tti 11-10-99 for about two months and after conviction from 29-10-2001 till 1-8-2002 for about ten months, thereby he was in custody for a total period of one year during pendency of trial and during pendency of (" appeal. Appellant Samaji ison bail. In these circumstances, his period of detention is sufficient sentence to him for the offence of commission of making assault to Baisakhu. Leamed Senior Advocate also argued that the prosecution has failed to prove the offence under Section 3 (2) (v) of the Act against the appellants, the appellants have not caused any injury or not committed homicidal death of the deceased on the ground that deceased Baisakhu Ram was member of Scheduled Caste. Therefore, conviction & sentences of the appellants under Section 3 (2) (v) of the Act are not sustainable under the law. 10.0n the other hand, learned State counsel opposes both the appeals and submits that the prosecution has proved the case beyond alt reasonable doubts. Eyewitnesses Animesh (PW-2) & Girdhari (PW-3) have cleariy deposed that the appellants have caused injuries to Baisakhu Ram and Baisakhu Ram has atso made dying declaration before Kritlal (PW-4), Suktu Ram (PW-5), Sunher Singh (PW-6) & Thakur Ram (PW-7). Evidence of aforesaid witnesses is also suffident to establish the fact that both the appellants have caused fatal injuries resulting in death of the deceased. After appreciating tlie evidence avaitable on record, the trial Court has rightly convicted & sentenced the appellants. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 12.1n the present case, homicidal death of deceased Baisakhu Ram as a result of fatal injuries found over stomach and liver has not been substantially disputed on behatf of the appellants, even otherwise, it is established by evidence of Dr. M.P. Mahiswar (PW-11) and autopsy report Ex.P-8 that death of deceased Baisakhu Ram was homicidal in nature. 13.As regards complicity of the appellants in the crime in question, conviction of the appellants is based on evidence of eyewitnesses Animesh (PW-2) &Girdhari (PW-3) and dying declaration made by the deceased before Kritlal (PW-4), Suklu Ram (PW-5), Sunher Singh (PW- 6) & Thakur Ram (PW-7). As per evidence of Animesh (PW-2), appellant Samaji was holding deceased Baisakhu Ram and co-appellant Suraj assaulted him by wooden plank. In para 7 of his cross- examination, he has admitted that Suraj has used burning fuel wood. As per evidence ofGirdhari (PW-3), firstly Suraj abused Baisakhu Ram and ^ ("• thereafter, he assaulted Baisakhu Ram by burning fuel wood, thereafter, Suraj fled away from the spot. 14.As per evidence of Kritlal (PW-4), Suklu Ram (PW-5), Sunher Singh (PW-6) & Thakur Ram (PW-7), deceased Baisakhu Ram made dying declaration before them in which he has specifically stated that both the appellants have caused injury to him. Thakur Ram (PW-7) has deposed in para 3 of his evidence that at the time of such injury Samaji was holding the deceased and Suraj assaulted the deceased by lathi. Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimony, especially relating to the fact that appellant Samaji was not holding the deceased and Suraj has not assaulted him by fuel wood. 15.Evidence adduced on behalf of the prosecution, especially evidence of Animesh (PW-2), Girdhari (PW-3), Kritlal (PW-4), Suklu Ram (PW-5), Sunher Singh (PW-6) & Thakur Ram (PW-7), is sufficient to establish the fact that both the appellants have caused homicidal death of deceased Baisakhu Ram. The act attributed to appellant Samaji clearly reveals that at the time of causing injury by appellant Suraj, he was holding the deceased and has made the deceased helpless, the deceased was not in a position to flee from the spot or save himself from the injury caused by Suraj on account of the fact that co-appellant Samaji was holding him. This shows sharing of common intention for causing homicidal death of deceased Baisakhu Ram. 16.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 17.1n the present case, as per evidence, on account of dispute relating to pig meat, appellant Suraj abused deceased Baisakhu Ram and thereafter, he assaulted Baisakhu Ram by burning fuel wood. As per evidence of Barelal (PW-1), appellant Suraj took out the burning fuel wood from his house, but at the time of causing injury by Suraj, appellant Samaji was holding the deceased. After sustaining such injury, injured Baisakhu Ram went to the police station for lodging report and he was examined by the doctor, thereafter, he was advised for surgical treatment. However, as per evidence of the prosecution and case of the '^J/ '•'^•1.- - .^::'^ • prosecution, injured Baisakhu Ram went back to his house on account of non-availability of money for his treatment and thereafter he died on 9-7- 99 after two days of the incident. The appellants were having sufficient opportunity to kill the deceased on the spot, but they have not caused injuries, even nobody was present on the spot to save the deceased. Witnesses present on the spot have not tried to save the deceased. This shows that the appellants have not caused homicidal death of the deceased with intent to cause his death, but at the time of causing injuries, especially injury over abdomen resulting in rupture of stomach & liver, the appellants were having knowledge that by their act the deceased may die. However, considering the internal injuries without external injury except the unbearable pain and the fact that the deceases|, was alive for two days and that he was not medieally treated, we are the view that the act attributed to the appellants does not travel beyond the scope of Section 304 Part-11 ofthe IPC. IS.Evidence adduced on behalf of the prosecution clearly reveals that the incident took place on account of dispute relating to pig meat and not on the ground that the deceased was member of Scheduled Caste. Therefore, conviction & sentences imposed upon the appellants under Section 3 (2) (v) of the Act are wholly unjustified and not sustainable under the law. 19.While convicting & senteffcing the appellants under Section 302 of the IPC, the trial Court has not considered the circumstances, especially the role attributed to theappellants and the fact that the deceased died ac ;^" "Sri result of injury including failure of treatment, and thereby committeff illegality. r 20.For the foregoing reasons, both the appeals are partly allowed. Conviction & sentences imposed upon the appellants under Section 3 (2) (v) of the Act are hereby set aside and they are acquitted of the said charge. Conviction of the appellants under Section 302 read with Section 34 of the IPC is altered to Section 304 Part-11 read with Section 34 ofthe IPC. Considering the act attributed to the appellants, especially the act attributed-to appellant Samaji, the appellants are hereby sentenced to undergo Rl for five years & pay fine of Rs.2,000/-, in default of payment of fine to further undergo Rl for six months. Appellant Suraj -, is in custody since 9-7-99 and has completed more than ten years of ^J/ '•;1,>.,..n;-':" Soma imprisonment. He be released forthwith, if not required in any other case. Appellant Samaji was in custocty for about one year i.e. from 9-7- 99 to 11-10-99 and from 29-10-2001 till 1-8-2002. Appellant Samaji is on bail. He shall surrender immediately before the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Rajnandgaon for serving remaining sentence. sdr°~~~— - i. • r-- sd/- ^ ^Sham,^ ^-- . R-LJtowar Judge""' ^:.;. 1 Judge 1 <»