HIGH CQURT OF CHHATTISGARH. BILASPUR Criminal Apgeal No.81 'of 2008 APPELLANT: (In Jail) Smt. Sukai Bai, Wlo Chanduram, aged 40 years, R/o Thothapara, Haibaras PLS. Kuakonda, Dantewadé, Distt. South Bastar (C.G.) Versus State of Chhattisgarh‘ through the In- charge Police Station Kuako’nda, Dantewada,Distt. South Bastar (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminai Procedure, 1973} RESPONDENT: Present: Mr. Rajesh Kumar Jain, counsel for the appellant. Mr. Ravindra Agrawal, Panel Lawyer for the Statelrespondent. Single Bench: Hon’ble Mr. T.P. Shanna, .J . ORAL JUDGMENT (Delivered on 9*“ September. zoos) 1. This is thejall appeal challenging legality and propriety of the judgment of conviction and order of sentence dated 14‘“ December, 2m}? passed by the Sessions. Judge, Dantewada in Sessions Trial No.109/2007, whereby learned Sessions Judge after holding the accusedlappellant guilty for commission of offence under Section 326 read with $eotion 34 of the l.P.C., sentenced her to undergo R.l. for three years & pay a fine of Rs.300/—, in default of payment of fine to further undergo R.l. for one month. Learned Sessions Judge also convicted oo-aocused Chanduram under Section 326 of the I.P.C. and sentenced him to undergo R.l. for three years & pay a tine of Rs.300/—, in default of payment of fine to further undergo R.l. for one month. 2. The judgment is challenged on the ground that without any credible evidence of committing the offence, the trial Court has convicted and sentenced the appellant. 3. l have heard learned counsel for the parties and perused the impugned iudgment as also the record of the trial Court. 4. Case of the prosecution, in brief, is tha on 1-1 «2007 at about 8 p.m. the appenant aiong with her husband Chanduram went to the’heuse‘ of Sonuram (since deceased) and asked for providing food, when Sonuram and his brother Nirbalram told the accused persons that they have not prepared meat, the accused persons abused them and assauited Nirbalram (PW-1). Both the accused persons assaulted $onuram with wooden piank on his stomach as a resuit of Which Sonuram sustained injuries and died on 4-1-2007. Merg intimation was recorded vide Ex.P— 10 and on the basis of merg intimation, F.i.R. was registered vide Ex.P- 11. The investigating Officer left for the scene of occurrence and after summoning the witnesses vide ExP—‘i, he prepared inquest EXP-2 over the body of Sonuram. Spot mapwas prepared by the Investigating Officer vide Ex.P—3. Pieces of wooden piank, the weapon of offence, were seized vide Exs.P—4 & 5 from co-accused Chanduram & the present appeiiant, respectively. The Patwari prepared the site map vide EXP-6. Body of Sonuram was sent for autopsy to Block Medical Officer, Kuakonda. Dr. BD. Roy (PW—7) conducted autopsy on the body of deceased Sonuram vide Ext-ta and opined that the cause of death was due to rupture of spleen. He has also examined the weapon of offence wooden plank vide EXP-9. After recording the statements of witnesses under Section 161 of die Cr.P.C. and after completion of investigation, charge sheet was filed before the Court of Judicial Magistrate, First Class, Dantewada who in turn, committed the case to the Court of Sessions Judge, Dantewada. ln order to establish the guiit of the accused persons, the prosecution, has examined as many as eight witnesses. Statements of the accused , persons have been recordedrlunder Section 313 of the Cr.P.C. in which they have denied the circumstances appearing against them in the prosecution evidence, pleaded innocence and false implication. . After affording opportunity of hearing to the parties, learned Sessions Judge has convicted and sentenced the appellant along with the co- accused in the aforesaid manner. lt is argued on behaif of the appellant that according to the case of the prosecution, Chanduram has assaulted Sonuram‘ (since deceased) without any intention, or knowledge and the present appellant has not . . . assaulted Sonuram, Sonuram has not died as a result of the injuries sustained by him and caused by appellant Sukai' Bai, therefore, the appellant is not liable forconvictlon under Section 326 read with Section 34 of the l.P.C. 9. On the other hand, the judgment is supported on behalf of the State! respondent. 10.ln the instant case, co-accused Chanduram, husband of the present 1 appellant, has also been convicted for commission of offence under Section 326 of the l.P.C. and sentenced to undergo R.l. for three years & pay a fine of Rs.300/-, in default of payment of fine to further undergo R.l. for one month. But according to the information received from the Registry of this Court, Chanduram has notpreferred any appeal, only Sukai Bai has preferred this jail appeal. 11.ln order to establish charge against the appellant, the prosecution has adduced ocular and medical evidence. Nirbalram (PW-1), brother of deceased Sonuram, is eyewitness to the incident. He has stated in his evidence. that the appellant along with her husband came to his house and asked for providing meals, when they told the accused persons that they have not prepared meat, the accused persons quarrelled with them. Chanduram slapped him and kicked Sonuram and also assaulted with, wooden plank, over his chest. Appellant Sukai Bai also assaulted Sonuram with wooden plank over his chest. His wife Baldei &« Sonuram‘s wife Butki had intervened. Sonuram fell down on the ground and died after 2-3 days. The matter was reported. 12.Smt. Baldei (PW-2), wife of Nirbalram & Smt. Butki Bai (PW-3), wife of deceased Sonuram have supported the version of Nirbalram (PW-1). Meghnath (PW-4) & Mahadev (PW-5) have stated in their evidence that a Panchayat was convened, according to the statement of Meghnath (PWA), appellant Sukai Bai has admitted that she has assaulted deceased Sonuram. 13.Autopsy was conducted by Dr. B.D. Roy (PW-7) who has statedthat on internal examination of the dead body of Sonuram, he found that his spleen was ruptured, the cause of death was asphyxia 8. cardiac arres as a result of excessive haemorrhage. and the death was homicidal in t i nature. But in his cross-examination, he has admitted that in the cases like the instant one where the rupture of spleen'was present the injured person may die within 1 or 2 hours of the incident. But in this case, the deceased diedafter four days of the incident. 14.Meghnath (PW-4) has admitted in his cross-exandnation that in the Panchayat, Suka'i Bai has stated that she has not assaulted Sonuram. Mahadev (PW-5) has admitted in para 5 of his evidence that sukai Bai was not present in the Panchayat. 15.$mt. Butki Bai (PW.3) has admitted in her cross—examination para 6 that she has not heard the conversion took ptace ’between the accused persons, her husband & her elder brother-in-law, it is correct to say that her husband Sonuramthad tried to oust the accused persons from the, house, it is incorrect to say that in the scuffle her husband had fallen on a r wood and sustained injury on chest. 16.Smt. Baldei (PW-2) has deniedthe suggestion that she has not seen the incident, although Smt. Butki Bai ,(PW-3) has stated in her evidence that Baldei was not present at the time of incident. 17.Nirbalram (PW-1) has categorically stated about the incident and admitted in para 9 of his evidence that the appellant and her husband were in drunken condition, but he has denied that deceased Sonuram was trying to oust the accused. and during the course of scuffle‘ he fell down. He has admitted in para 12 of his evidence that there was no external injury over the body of Sonuram. He has also stated in para. 3 of his evidence that firstly Chanduram has assaulted him. thereafter, he kicked and assaulted Sonuram with wooden plank on his chest. 18.The above evidence of‘ Nirbalram (PW-1) shows mat accused Chanduram has caused two injuries over'the person of Sonuram and. one injury to this witness. ln absence of any definite opinion by the doctor, it is difficult to hold that as to who has caused fatal injury or grievous. injury to deceased Sonuram. There was no previous enmity between the parties and the accused persons have no intention to kill or cause any injury to Sonuram, but suddeniy on the point of preparation of meat, “some scuffle took place between the parties and the appellant along with her husband firstly assaulted Chanduram, thereafter they assaulted deceased Sonuram with woudeh plank. The prosecution is v, required to establish£xat as ta who has caused grievous assauit to the; ' deceased. This is not the case where both the accused persons have shared common intention. Their acts are independent and distinct, they are not responsibie for the act of‘each others, on the ground of sharing of common intention; in absence of common intention that the appeiiant has causedvgrievous assault, conviction of the appeilantunder Section 326 read with Section 34 of the I.P.C. is not sustainabie, but on account of causing injury with the help of wooden plank; which itseit is a dangerous weapon, the, act of the appeilant squarely falls under Section 324 of the I.P.C. 19. Leamed counsel for the appellant submits that the present appellant is in. custody from 4~1 -2007 till today, thereby she has completed 1 year 8 months r5 days of therjail sentence. The period atready undagona by the appellant is sufficient sentence‘under Section 324 of the I.P.C. 20.ln the result, the appeal is partly allowed. Convictions & sentences imposedupon the appeltanttunder Section 326 read with Section 34 of the l.P.C. are set asidewand she is acquitted of the said charge, instead thereof; she is convicted under Section 324 of the l.P.c. and smtenced to undergo R.l. for 1 year 8 months 5 days (period already undergone by her). She be set at liberty forthwith, if not required in any other case. Sdl- T. P. Sharma Judge ' f W Soma