HIGH COURT OF CHHATTISGARH AT BILASPUR MEMO OF APPEAL- UNDER SECTION 37g2! OF CODE OF CRIMINAL PROCEDURE. Present:— Mr. Neeraj Mehta, Advocate for the appellants. Mr. J.A. Lohani, P.L. for the State/respondent FF( 14 ORAL-JUDGEMENT q, (Passed on 22/07/20 1 1’ The following iudgment of the Court was passed by T.P. Sharma, J:- 1'. Challenge in this appeal is to the judgment of conviction and order of sentence dated 29/7/2005 passed by First Additional Sessions Judge Surajpur, Surguja (C.G.) in Sessions Trial No.' 415/2004 whereby and Where under after holding the appellants guilty for the commission of offence of culpable homicide amounting to murder of Surti Prasad in sharing DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. RAEGNATH CHANDRAKAR, Ja. Cr. APPEAL NO. 651 OF 2005 1’ APPELLANTs (1) Heera La1 Rajwade S/o (IN JAIL) Swyambar; aged about 45 years, (2) Babu lal S/o Swayambar, aged about 35 years, Eu “3' (3) Jwahjr Rajwade, S/o Swayambar, aged about 42 years, ‘ All Residence of Village Gumga Dahimar, Thana—Premnagar Distt.-Surguja (C.G.). VERSUS NON-APPELLANTS The State of Chhattisgarh common intention, convicted the appellants under Section 302/ 34 of the Indian Penal Code and sentenced imprisonment for‘life and flne of Rs. 500/ -, in default of payment of tine amount additional rigorous implisonment for 2 months. Conviction is impngned on the ground that without any iota of evidence sumcient for conviction of appellants, ‘Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful day of 28/5/2004 between 6:00—7:00 PM. on account of ownership, possession and collection of Mahua, some quarrel took place between appellant Heera Lal Rajwade and Surti Prasad (since deceased), Heera Lal Rajwade came with stick and quarreled with Surti Prasad, after hearing the sound of quarrel, co—accused Babu lal 8r, Jwahir Rajwade came, they were also holding stick then Surti Prasad rushed from the spot and Went inside the house of Ramnarayan Kanwar where appellant Heera Lal Rajwade went inside th house of Ramnarayan Kanwar and caused fatal injury over the head of Surti Prasad. PWI Munnibai, Wife of deceased Surti Prasad went to the Police Station and lodged First Information Report vide Ex. P- 18. Surti e Prasad was examined by PW7 Dr. S.R. Paikra vide Ex. P- 10 and found following injuries:- (i) Multiple abrasions of different sizes over right elbow joint. (ii) Depressed injury over frontal region about 2 c.1n. x ‘/2 c.m. x 0.2 c‘m. (iii) Bone was depressed and advised for X- Ray. Surti Prasad was unconscious during course of treatment and succumbed to injuries. Death was intimated by doctor on 3/6/ 2004. Marg intimation was recorded vide Exs. P—22 & P—23. Investigating Officer left for scene of occurrence and after summoning the Witnesses vide Ex. P— 14, inquest over the dead body of Surti Prasad was prepared vide Ex. P-15. Dead body of Surti Prasad was sent for autopsy to District Hospital, Ambikapur where Dr. S.Ki Sinha conducted autopsy and noticed multiple nactures on frontal 85 parietal bone with blood clotts and brain & membrane are deeply congested. Cause of death was coma due to hemorrhage caused by head injury. Spot map was prepared vide EX. P—24. During course of investigation, appellant Babu lal was taken into Custody, he made discloser statement of stick vide Ex. P—l and same was recovered at his instance vide Ex. P—2. Blood stained and plain soil were recovered from the spot vide Ex. P- 3. First map was prepared vide EX. P—4. Appellant Heera Lal Rajwade was taken into custody, he made discloser statement of stick Vide Ex. P—7 and same was recovered at his instance Vide Ex. P-8. Accused Jwahir Rajwade was taken into custody, he made discloser statement of stick ‘vide Ex. P-11 and same was recovered at his instance Vide Ex. P— 12. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Surajpur who in turn committed the case to the Court of Sessions, Ambikapur from where learned First Additional Sessions Judge Surajpur, Surguja (C.G.) has received the case on transfer for trial. In order to prove the guilt of the appellants/accused persons prosecution examined as many as 22 witnesses, Accused persons/appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. After affording an opportunity of hearing to the parties, learned First Additional Sessions Judge Surajpur, mt Surguja (C.G.) convicted and sentenced the appellants as aforementioned. Mr. Neeraj Mehta, learned counsel for the appellants and Mr. J.A. Lohani, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. Lealned counsel for the appellants vehemently argued that in the present case, as per case of the prosecution and the evidence adduced on behalf of the prosecution on account of dispute of collection of Mahua, some quarrel took place between Surti Prasad and appellant Heera Lal Rajwade thereafter after hearing the sound of quarrel, other appellants namely Babu lal & Jwahir Rajwade came, they chased Surti Prasad, Surti Prasad went inside the house of Ramnarayan Kanwar then appellant Heera Lal Rajwade went inside the house of Ramnarayan Kanwar and caused injury over the head of Suru' Prasad even having sumcient opportunity to cause injury; other appellants have not caused any injury to Surti Prasad, Surti Prasad was alive for 6 days after the incident shows that appellant Babu lal 8L Jwahir Rajwade have not committed any offence in sharing common intention and act of appellant does not travel beyond the scope of Section 304 Part—II of Indian Penal Code. xw C’V/ 10. Learned counsd for the appellants placed reliance in the matter of Veeran 85 Ors. v. State of M.P.1 in which Supreme Court has held that in case of hght between parties not pre—meditated on sudden quarrel only accused who has caused vital injury on the head can be convicted under Section 304 Part-I of Indian Penal Code other are liable under Sections 323 85 149 of Indian Penal Code. On the other hand, learned P.L. for the respondent/State opposed the appeal and argued that all the appellants chased Sulti Prasad and all the appellants have caused injury to Surti Prasad. After appreciating the evidence available on record learned First Additional Sessions Judge Surajpur, Surguja (C.G.) has rightly convicted and sentenced the appellants as aforementioned. 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case, fatal injury found over the head of deceased Surti Prasad and his death as a result of such injury has not been substantially disputed on behalf of the appellants on the other hand, otherwise also established by the evidence of PW7 Dr. SR. Paikra, i 2011 CRI. L.J. 2688 WP injury report EX. P— 10 and marg report Ex. P—22 based on death intimation by doctor. As regards the complicity of appellants in crime in question; conviction of the appellants are substantially based on the evidence of PW2 Aagarsai, PW4 Dilbodh 85 PW18 Pradeep Kumar @ Pappu. As per evidence of PW18 Pradeep Kumar @ Pappu, firstly appellant Heera Lal Rajwade abused Surti Prasad thereafter appellants Jwahir Rajwade 8a Babu lal came, they were showing stick and chased Surti Prasad thereafter injured body of Surti Prasad was found in the house of Ramnarayan Kanwar. As per evidence of PW4 Dilbodh; 12 years aged child witness, appellants quarreled with Surti Prasad then they chased to Surti Prasad, Surti Prasad went inside the house of Ramnarayan Kanwar where he was found lying in the iloor. As per his evidence, he has not seen the incident which took place inside the house of Ramnarayan Kanwar. PW2 Aagarsai has deposed in his evidence that appellants were chasing Surti Prasad, Surti Prasad went inside one house where Heera Lal Rajwade went and caused injury to Surti Prasad then Surti Prasad fell down. Defence has cross-examined these Witnesses at length, PW 18 Pradeep Kumar @ Pappu has deposed in Para-4 8a 5 of his cross-examination that Surti Prasad received injury by falling but his evidence reveals that he was repairing tiles of roofg he had not gone to the houseof Ramnarayan Kanwar and it was not possible to him to seen the incident took place inside the house of Ramnarayan Kanwar. Para~4 8s 5 of evidence of PW 18 Pradeep Kumar @ Pappu does not inspire confidence and trustworthy. As per evidence of’PW2 Aagarsai 8t; PW4 Dilbodh, appellants were chasing Surti Prasad and Heera Lal Rajwade caused injury to Surti Prasad. Evidence of aforesaid witnesses Ieveal that initially quarrel took place between Suiti Prasad and appellant Heera Lal Rajwade even as per First Information Report lodged by PWI Munnibai, Wife of deceased Surti Prasad that initially Heera Lal Rajwade quarreled with her husband and after hearing the sound of quarrel, other appellants came then they chased her husband shows that only after hearing the sound of quarrel, other two appellants came where Heera Lal Rajwade was quarrelling with Surti Prasad on account of dispute relating to collection of Mahua. Heera Lal Rajwade has caused injury to Surti Prasad inside the house of Ramnarayan Kanwar having sunicient opportunity to cause injury to Surti Prasad other appellants have not caused any injury to Surti Prasad and Surti Prasad has died after 6 days of alleged incident as a result of injury Ag. found over the head. Aforesaid evidence are sufiicient to establish the fact that initially Heera Lal Rajwade quarreled with Surti Prasad and has caused his homicidal death. At the time of such incident, other two appellants were present. As regard the question of intention is concerned, initially quarrel took place between Heera Lal Rajwade 8s Surti Prasad then Heera Lal Rajwade caused fatal single blow to Surti Prasad. At the time of such incident, Surti Prasad was lying and he died after 6 days of alleged incident having sufficient opportunity to cause further injuries or to kill Surti Prasad, Heera Lal Rajwade has not caused second blow shows that he has not caused injury to Surti Prasad with intent to cause his death but at the time of causing such injury, he was having knowledge by his act Surti Prasad may die. These evidence are sumcient to establish the fact that appellant Heera Lal Rajwade has not caused homicidal death of Surti Prasad with intent to cause his death and his act does not travel beyond the scope of Section 304 Part-II of Indian Penal Code. As regard the act attributed by the other appellants namely Babu lal 85 Jwahir Rajwade are concerned, they came on the spot later on after hearing the sound of quarrel, they accompanied appellant Heera Lal Rajwade Kw J x l7. and they were having sufficient opportunity to cause injury to Surti Prasad but they have not caused any injury to Surti Prasad shows that they were not having intention for causing homicidal death of Surti‘ Prasad amounting to murder or not amounting to murder but on the basis of their act inference may be drawn that their intention were to cause simple injury to Surti Prasad. As held in case of Veeran (Supra) that in absence of any intention for causing homicidal death of Surti Prasad, appellants Babu lal 8r, Jwahir Rajwade are not liable for causing homicidal death but they are liable for the offence punishable under Section 323 of Indian Penal Code While convicting and sentencing the appellants under Section 302/ 34 of Indian Penal Code, Court below has not considered the aforesaid facts 8s circumstances and thereby committed an illegality. For the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellant I—Ieera Lal Rajwade under Section 302/34 of Indian Penal Code is altered into under Section 304 Part-II of Indian Penal Code and he is sentenced to rigorous imprisonment for the custodial period i.e. since 3/6/2004 till today for about more than 7 years. Conviction of the appellants Babu lal &-Jwahir Rajwade under Section 302/34 of Indian . 1V 11 P€nal Code is altered into under Section 323/34 of Indian Penal Code and they are sentenced to rigorous imprisonment for 1 year. They have served aforesaid .. .. ..... ' \ sentence. sal‘ 'T‘P.SHARMA Mx Sdl— Judge "A: RN. Chandrakar t judge