(Convicted Accused Persons) (InJail) JA' S3-^>. ^"'L-^ ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) Criminal Appeal -L ? / "of 2002 APPELLANTS : 1. ^agmohans/o Gendi Ram Rathia Agedabout27yrs. 2. -<Iugeet Ram s/o Manglu Ram Rathia Agedabout23yrs. 3.^ Duliha s/o Gendi Ram Rathia Aged about 28 yrs. 4^ ChamaraRam s/oGendi Ram Rathia Agedabout28yrs. All ResidentofVillage-Supkona P.S. Dharamjaigarh Distt. Raigarh ^- "'^^ VJ^^°'a'^ ..--•'•' ^p o ^^ VERSUS NQN-APPELLECANT STATE OF CHHATISGARH Through P.S. Dharamjaigarh Distt. Raigarh (C.G.) APPEAL U/S 374 (2) OF THE CODE OF CRIMINAL PROCEDURE 1__„.,________„_____.._~~~- HiN^i^'n^ vd-c^'-^ i^irt^i, ya1^4i<?, Rirti^iyx ^ .. c.^.;J^.,..^t.7.6........ .. W^200 2- 3TT^?T q^l?(^c|ij6|^) 3T!^^T<Frf^FH<^ ^2n3n^9Ta?qN> \. .--^... g^TT^R^rf^T OT^^T DB: Hon'ble Shri L.C.Bhadoo H^nlMeShriSunilKumar 08^7,2005 Shri. K,N,Naadc, leanie< Shn Akhil Mishra, Paa< Heard, OralOrder The accused appellaati have assaUed fhe judgment Third Additional Sessions learaed Addl. Sessions Judi of fhe accused to undergo) accused persons nainely Ba^isi Sai, Vishnu Prasad were con^icted sections 147 and 323 IPC s(: court u/s 323 IPCon the gi\ poor aiid tdbals, However, <PI<<fc5^T1 +11*10^'^" feL£l\Rl<«i\ ^3T^T3T?^?T asad Sinha. JJ i counsel for fhe appeUaats. A Lawyer for fhe State. ^ by fhis appeal under section 374(2) djated 20.2.2002 passed by the leamed pudge (FTC) Raigarh, whereby the ^e convicted fhe accused appellaats aad Chamara under sectlon 302 Jagniohan, Jugeet Rani, Du^Lha rcad with section 34 of the Itidiaa Penal Code aad sentenced each life iiaprisoninent The otiier six si Ram, Ram, Premlal, Gtopal, Amar for commission ofoflfence under |nd were sentenced tUl raisiag of fhe ^und fhat fhese accused pei-sons are IOLO sentence was passed ia respect of SP/FS/2005-20,000 ^wf '-^iwirt'q, tPrH^<l<o, Ri011<-iy< _^_ C^. App. ^ '? 6 NH<^ia?'ff^.............^.........^—....,^20(y2- W^^T q^q? (^c|i^<s|<g) ^^Tcprf^fte <::f2n3TF^$T^1R^ ^iT^^rf^'W^^T ^ ^_^ the ofience u/s 147 IPC. acquitted all fhe accused However, no findiag was I.P.C. fhis crimmal appeal, is that <PI<.lf0<?lw1+11HC5T ^" I^^^Rfl^l^ ^3Tf^T3n^^T The leamed Addl. Sessions Judge Ipersons u/s 302/149 & 307/149. rec<|>rded ia respect ofofiTence u/s 148 of (2) The brief case of the ^rosecution, necessary for disposal of on 15.09.1999 festival of Navakhai was being celebrated by viU^gers at about 4 p.m. The accused Bansi went to the house of ^hool Singh, fafher of the deceased for caUiag hioi. However, Phool^ Suigh was not present in his house. Baasi was m a drunken con|dition. He started abusmg on which Jotram asked him not to abtuse, but iastead of sfoppiag hunself, Baasi started assaultiag Jc|tram. At that time Jeeramati aad others tried to iater^ene on tvhich fhe accused persons assaulted fhem with Lathi ia a drunkeja condition, On hearing the voice of the quarrel, the deceased Ti^lsi Ram came on fhe scene, tried to intervene aad asked the acci^sed persons not to assault, on which the accused Chamra, DuHh^[, Jagmohaa aiid Jugeetram mflicted mjuries with lafhi on his he^d, as a rcsult of which Tulsiram feU down. Thereafter fhe motl3|er of ftie iajured namely Itwari Bai ^ l SP/FS/2005-20,000 vjiyq <-qi^lrt<<, tP-al^-i^lC, Rl0W^< c^i./ipp. HI*lc»ia?Tf^""""""1"?"""1''' """""W1200'2- 9n^$T q^F (l3crfg6H5) 3TT^^T<^f^TT<P <:T2TT3Tr^$T^^te ?'^TWr^rf^T OT^^T 3- caine aad took hiin iaside case was registered by P.W,^ <pi^Io41ri +ii4'twT^'"l^l-3 ^Kfl^i^ ^3(rf^T3ff^$T ftie house aad shifted him to the hospital. The matter was rep|orted to fhe Police by Itwari Bai, The Rajesh John under section 307 read wifh section 34 IPC aad Tullsirain was sent for treatnient to fhe Prmiary Healfh Center, La}lunga where he died on the niext inormiig, On receiviag the i|GLfonnation of deafh of Tiilsirami, fhe offence was converted u/s 3|02 IPC. The Panchnama of the dead body was prepared aad the deceased was conducted by doctor opiaed ftiat Tulsiram by hard aad blunt object (3) The iiivestigatiag offic^r after coinpletion of the iavestigation filed a charge sheet agamst| Judicial Magistrate First Claj case to the Sessions Court R| postDiorteni on titie dead body of the Doctor R.S.Upadhyay (P.W.23). The |lied on account ofhead iajury caused fhe accused persons in fhe Court of ss, Dharamjaigarh who committed the aigarh for tadal frora where fhe learaed third Addl. Sessions Judge r^ceived fhe case on traasfer. (4) The leanied Additioiijal Sessions Judge after heariag fhe F>ublic Prosecutor and coun^el for the accused persons aad after going fhrough the material 0^1 record was of fhe opmion fhat prima SP/FS/2005-20,000 (— w. ^®ET-^I^K?)^, y-al^-Ko, Rioit<+yx HI*1<^1 ^'Tf^ ..... .'....4 .Y.J.-. .....'.. .i. .v........ ^F^ goQ./^ ^$Tq^cp (xjcli^cl^) -\ W^^Tc^^Tfcp ?raTT3T^$TaRNp ^TT^R^rf^TOT^^T ^- Z^ facie offences under section^ 307/ 149, 302/149 and 148 were niade out aad accorduigly fh\ to fhe accused persons. The| aad clauned for tdal, The| offences agaiast the accusec witaesses. The sfateinent of the learaed Addl. Sessions Ju <pi^fcl5<nTi ^nw?fff^StxRi^ci^ ^sil^Tgir^sT for fhe accused persons aad ^ charges were fraaied and explaiaed accused persons denied fhe charges prosecution ia. order to prove fhe persons, examiaed as inaay as 24 |he accused persons were recorded by dge u/s 313 ofCr.P.C., ia which they pleaded ianocence statmg fh^it fhey have been falsely iinplicated in the crime. (5) After heariag the Add^tional PubUc Prosecutor and counsel ^laciag reUaace on evidence ofthe eye witaesses, fhe leamed Ad^ll. Sessions Judge convicted aad sentenced fhe accused appeUjaiits aiid ofher co accused persons ia fhe aforesaid inanner. (6) We have heard Shri accused appeUaats and Mr State. Leanied counsel |S.N.Nande, learned counsel for fhe ^AkhU Mishra, Paael Lawyer for fhe f^r fhe accused appeUaats has not Ueafh of Tulsirara was honiicidal m. disputed fhe fact that the nature. P.W.23 Dr. R.S.Upa4hyay has stated that on 16.9.1999 he SP/FS/2005-20,000 ^°) ' vjTyq <-qi<4IO<4, tP'Xll^<l<o, Rl<?)W^< V^^V-^-^P-^^--- ^200^ 3Ti^^TcPTf^Rt<P ^ww^^T^^rt^ W^$T q^P (^c|l^c|<^) ?;RTt$;R ^Tf^T 3H^5T - 5~- was posted at Community H fhat date on fhe reqiiisiti conducted the postmortein he found that fhere was a 03|1 near about left eye ia size of SkuU and m his opmion bo c»>i^fc5<nvi^i^ioT^' fe1^ ^Rn^-ci^ ^3Tf^T3TI^$T (ealth Center, Dharamjaigarh aad on ()n of Police Station, Laiiliinga he the body ofTidsii'ani. He stated that l^icerated wound in. size of 5cin x lcui iato scalp deep, fhe other l^cerated wound was 6n tiie forehead 3cm x y2 cm x Ys cmi. On dissection of the head he found that tii^re was depressed fracture of vault of fch ftie injuries were caused by blunt aad hard object He has J|urther stated fhat iojury no.l was grievous ia nature aad uyur}! Itwaribai (P.W. 1) Jaitram (F| no.2 was simple ia nature aad ia his opinion fhe cause of death v^as as a result of head mjuiy aiid on account ofhaexnorrhage. Thejrefore ia view oftiie above evidence of the Doctor aad also fhe e^idence of tiie eye-witaesses nainely •W.5), Sonsai (P.W.7) and Saairobai (P.W,8), it staads proved £ha|tfhe nature of death of Tulsiraia was honucidal, (7) Now coinuig to the iav' ttie crrnie ui question fhere P.W.l, P.W.5, P.W.7, and P.^ ^lveinent of fhe accused appellants in s|re 4 eye witaesses fo fhe iacident i.e^ .^.8. Itwari Bai (P.W. 1), the mofher of 1 SP/FS/2005-20,000 ? j '^s^^'^-: Tl vjwf <^l^lrt^, tp-ai1<-i<i<c, Rrti'<iy wCT^m^ ^••^P^ ^^^ - :^2oo^^ 3TT^$T q^P (ijclljd^) 3n^^TwRs^ ^STTOT^^T^Hf^ ?;^nm ^rf^r W^ST c' <pi<i[c541Ti ^iHoT ^" Csl<l ^Rji^i^ ^3?f^T3TT^^T fhe deceased has stated tiia|t on 15.9.1999 at about 4 p.m., the quarrel started aad when rpulsirain cam.e out of fhe house to ititervene, fhe accused Ch^ wooden club aad DuUha, Ja^ ^tnru iaflicted iajury on hini wifh tinohaii, Jugeet also assaulted hioi as a result of which Tulsiram f^U down. He received/the mjuries on his head, inouth, chest, eye ^ml neck, Thereafter he was taken to fhe hospital. However, on fh|e next day niomuig he succuiabed to fhe mjuries ia fhe hospital. ^>.W,5 Jaitrain has stated fhat quarrel started between Tulsiraai ^nd accused persons. The accused Jaginohaa, Jugeetram, Chatmra aad DuHha attacked Tulsiram. wifh wooden club as a resul|t of which, he received iajury on the head. Thereafter he was shtf|:ed to Lallunga Hospital for treatinent P.W.7 Sousai has also nartuted ia fhe same miaaner fhat the accused Chamru, DuUha, Ju; wooden club as a result of head aad ofher part of fhe bc has stated that fhe accused DuUha iafLlcted iajuxy on ^eet aad Jagmohaa, attacked wifh fhe |which Tulsi received iajuries on the |dy. In cross examiaation ia Para 4 he Jugeet iaflicted iajiity on fhe back, fhe chest, accused Chamru aad Jaginohaa inflicted mjury w|ifh fhe wooden club on the head of SP/FS/2005-20,000 ^—ymj^^^^^^^^ \jipc| ^l^lcli^l, y-al^< , RloK-i^ Hl^rtl^^t^ " ••ci7?-•^3•••^? 4 • ••••••^200'2- ^n^^T q^R'? (ijc|i^<g) 3TI^^T<mRrrJ4> PTS.TT 3TT^5T3RN? ^. I^TT^^rf^f 3TT^^T — -7 ^ Tulsiram. P.W.8 Saniro Bail DuUha, Chamra attacked which he received injuiy on Thereafter his m.0ther took has stated fhat Jugeet, Jagxnohan, Tillsi with wooden club as a result of ti|ie head and feU down on the ground, htm. iaside the house and fhe accused persons left fhe scene ofoccu^rence. Ifwe look in.to fhe evidence of 4 eye-witaesses, it would categoricaUy stated ui his evidence fhat fhe accused |be clear fhat Sonsai (P.W.7) has ctross exaaiuiation ia Para 4 of fhe on fhe back, Duliha on fhe aad uijuxy report the lacerated wounds on fhe on fhe body of fhe deceased. | categorized fhe place of iajuryt However, fhey have stated fh^ head, Therefore, if we togefher then the conclusioi]| accused Chainru and 4?|4fc^^i1vi+iiHoTff feL£i<<FJI^-CI^ ^3Tf^T3II^ST C^amru aad Jagiaohan uiHicted iajuiy on the head of ftie deceased ^ifh wooden club and accused Jugeet cjhest whereas as per fhe Postoaiortein decjsased Tulsiram received only two forepiead aad no other iajuiy was found The ofher fhree witaesses have not scruttatze where ftie accused persons uiflicted. .t fhe deceased received injuiy on the fhe evidence of the 4 witness to which we caa reach is that fhe Jagmol^aa mflicted tiie mjury on fhe head of deceased and as far as othe^ accused nainely Jugeet and Duliha i ^Si' SP/FS/2005-20,000 NiN^iai'n^ vjTyqr'qi^irt^, »Tl1<<-l<l<?, R|OI<<1^ ,.c.^.^^..^3.^,..... 3TT^$T<RTf^W ?rsnw^$T9^rte -<v ^200^- w^^Tq^j? (»jcii^<£{) ^TT^^rf^T 3H^5T ^- €P(<4[0<S1V1+11HC)T^fe^l \Fj1^K ^3T^^3:TT^$T are concemed, no correspon|ding uijury was fouiid on fhe body of the deceased which has beei^ stated by P.W.7 Sonsai. It is not tiie version of prosecution wita€|sses fhat atl fhe 4 accused ioflicted irijiiiy on the head of fhe d^ceased, Therefore, after scrutiiuzing evidence of fhese 4 witaess^s, we are of the considered opiaion fhat the prosecution has not iajuries which were said to ^een able to prove fhe offence against the accused Jugeet and Di4iha beyond reasonable doubt as the [liave been caused by fhLera were not found on the body of fhe d^ceased durhig niedical examination. Therefore, findiag of fhe Court convictuag fhese two accused persons is not based on legjal evidence rafher fhe finding of the tdal court to this extent is record as such their convicti<|)n caanot be sustamed. Therefore, as far as fhe appeal of the accu; fhe saaie succeeds aad th|sir appeal is allowed aad fhey are acquitted of fhe charge for Chamm u/s 302/34 IPC is bontraiy to fhe evidence available on ^ed Jugeet and DuUha are conceraed, boraniission of offence under section 302/34 IPC. (8) Now so far as convicjtion of fhe accused Jaginohaa aad boncemed it has come on record that SP/FS/2005-20,000 '-• i \jw| <-^|^10q, tP^-l<|<?, R|c)Wy<< W1t5I WHW ••-c-?1--.'4PP-^q-'°---^200 ^ 3TT^$T q^P (x3cri^PR?) ^J 3Ti^^TWf^Tt<I) ^rs.iTsn^^TaroN on fhe fatefdl day, fhere wa^ fhe villagers who are ftie td|bal accused party and rival partijes aad had consuuied Uquor evidence it is estabUshed fh^t when Baasi went to call Ph|ool aad finditig ftiat Phool Siag abusiag ia aa iaebriated Jotram aiid m fhat ^as proc^ss wifli coinplaining party caoie fhat raoiaent, tibie accused a^) caine wifh fhe wooden club process, all of a sudden witi spur of niouient aad ia ftie aad Jagniohaa inflicted r Tulsirani aad he fell down aad ia fhe secoud day injuries ia fhe hospital, <r>(<tfc5<n<i ^IPT^f ^" feL£l<<Rfl^<i<< ^31^:T3:TT^?T festival of Navakhai and on fhis day people, eat, drink aad enjoy, fhe ti|es had also participated ui ftie festival |)n that day. Froni th.e prosecution the dispute arose on a petty fhitig Suigh, the faftier of tiie deceased not at his residence, Baasi started c|ondition, the same was objected by sonie of fhe persons of fhe lathis aad a scufUe started and at »peUaats Chainru aad JagmohaDL also when ftie deceased Tulsiraia came tod out of his house aad start^d mtewenmg aad stoppmg, ia that wif4out any preplaa or preineditation in a [heat of passion, tiie accused Chainru i4Jury on fhe head of fhe deceased s|nd fhen he was taken to the hospital i4oraing Tulsirain succuinbed to fhe SP/FS/2005 - 20,000 \j-OT|-qiqiC)«,ya1^<|<fl, RlOW^ HIN^I^m^ • '7!:" ^^': ' a^"" • W^200 ^_ 3TT^?T q^q? (<jc|^is|<g) ^ 3rr^^Tci7T^jcb ^STT3TT^$T9Rt^ •Y i^^R^rf^TOT^^T -|o (9) In view of the above case it caanot be iaferred evikience thlat and Chainru in^flicted iajuryl deceased. As uientioned abot Exception 4 of Sectiou 3C| considered opiaion fhat aa against the accused Cham( fuidiag of tihie trial court 302 read wifh section 34 IP<D )^e on facts, fhe case is covered under (O I,P.C,, therefore, we are of the |offence u/s 304 Part-II is raade out ^a and Jagiaohan. Therefore, fhe co^ivicting Chamru and Jagmohaa u/s IP<P caanot be sustaiaed as the same is not based on correct appreci^ appe^l (10) In fhe result,the fhe saine is allowed and thef read with section 34 IPC aa<3 ofience, fhey be set at Uberty Jaginohaii is also partly wifh section 34 IPC and aside. Instead thereof, fhey] fhey are sentenced to under^ <P(<<fc5<S1T1 ^1+101'^' fe^l ^Ki^lK ^3T^^T3TT^$T lence, facts aad circumstaaces offhe fhe accused appeUants Jagmohaa wifh ao. iatention to cause deafh of tion ofevidence. of Jugeet aad DuUha succeeds aad are acquitted offhe charge u/s 302 ia case tliey are not required ia any |forthwifh. The appeal of Chacaru aad atlc(wed, Their conviction u/s 302 read s^ntence awarded fhereunder are set are fconvicted u/s 304 (Part II) aiid o R.I. for 7 years. It is clear froni fhe ^li. \ SP/FS/2005-20,000 ~::::'SS^sas^S^^^^^:;S0^w^^^^s^^ vjwi -^ii^irt^, tPTi1^<i<?, Rirti<<iy<< WCTa,^...c.-^.-...^.^....... 3TT^$T traq? (ijcli^^) W^200 ^- ^^Tc^f^Tf^ ^[STr3ff^$T^^i<b ^ ^' Rao ?^^[ ^rf^T 3TT^^T (- judgment fhat the accuseA 19.9.99 tiUtoday. Therefoi^ to set offu/s 428 Cr.P.C. Sd/- L.C, Bhadoo Judge appeUants are ia custody siace ^, the accused appeUaats are entitled <P(^fc5<i)»iWT^f ^fe^Sl YRn^-cix ^3I^T31T^9T Sd/- Sunil Kumar Sinha Judge 't^s^