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Presc‘it R1111 At un km hm couns 61 fm the aypelldnts 5; u; Aran uao (10¢ Adam me frr the sta‘m ORAL JUDGMENT “Vi A§r11 ni’} Q Dhirm‘adm EigmaLg This crjmmal appeal iS directad against the judgm€nt of 8th Februarv 0.00? passed in (01331511011 and orda of smtsnaa dated 9 T No 140f2006 wherebv th€ Earned Addltmnal €eas1ons Judge£w tmn §O7f 34 of 3 Bhuvneshwar; uncier bectmn Janjgr has conmcted each of Lhe agapemmts unde: bee EPC for attexlmting murder of PW— injured Tujela alld under Sectinn 32% E4 323; 34 far causing injuriea t0 far causing injuries to mjured Jitemh‘a amieeutenced them t0 uncleyga a fine 0f R3. 1000f heach, RI for 1 year, RX far 1 yew, 3 months each All 111E re$})eci‘ive1y and in default i0 underge R1 fm‘ sentences have been directed ti: run concurrently (3.2136 0f the prasecution in nutshe}l i3 that on 17. l 9.03 in the night injured, Tujei They were stayped by Tujelg Ri for ’F years: pay 1 .2666 at ahout £ a was é‘tandigg before his houSe in the 1311’s; at ihat time ammllaxlts DuleShWa}: and Ramdulari were passing iiom the Laile using abusive 15mguage. 12mguage as womenfolk also reside E 3a§mg thatwhy they are 113mg filthy there. On this, the appellzmts Duleshwar 811d Ramdulari wer t to their heuee hrough‘t irrm rods and started aesaulting Tujela over his head ‘ A g2 EIGH COURT GF CHEIATTI$GARK AT §ILA$PUR CREMEIQAL APPEM 1V0 210 GE 2G0? A?PELLAI§T$ 1. Ramdulaxi S; 0 Kunja Bihari 28 {IN JEXIL) $atnami, aged abvut years. 2‘ Dile$hwa3‘ Sf 0 Kunja Bihari Satnami, agad about. 23 ysam‘ Both R} 0 Villags ?ax';hari Thaila— Shivarmarayari. 3. Bah am Jalwd€ WO Mavciram awed abuut 45 vears P} 0 atnaml VLUdGe Pa: adeeh lhanadanamur Dlgtni Janjgm Lhumpa (VC) Kid-mus; tin P Q. RE$?GR$ENT '. $tat€ 01 (‘hhaiuSgalh tin ough Skuvarmaravan Dmtrmt Emlair Chamna ((‘Gl and 61:63. When Jitendra and Bhuwmshwax cam€ them t0 intervene. Dileshwar and Ramdulari also aSsaultsti them and thr€at€ned them That thgy shaH km them. 111 the m€anwhi1€, appellant Bah‘am also reached mere and assaulted Jitendra 011 hi3 head. 3. Report of the meident was lmdged by T‘ujela (PW- 1) on the same day at about 23. 15 hours naming all the appdlants. hljured persons were sent for medical examination to 01ml Disloentsaj‘y, Shivaxinaxayan Where Dr. Anvita. Dlmm (PW—9) examjne'tl them and gave injury report of Jitendra (EXP)! 14), injury rqmrt 0f Bhmmeshwar [EXP] 15) and injury regmrt of Tujela (EXP! 16L Further query was sent to the doctor vide EXF; 17 Whether injuries preSent over persons of the injured, were Sunicient to cause their death in the ordinary course of nature and in reply to the above query: Dr. Anvita Dllruv (PW—9} submitted hi3 report ai‘ EXP! l7. Bliuvnesliwar was also aent for radiological examination and report of the radiologiet is EXP; 19. 4. After completing hivestigation, charge sheet was hled in the Court of Judicial Magistrate First Clasa: Janjgin who, in turn: committed the case to the Court of Sessions Judge and the same was received on transfer by learned Additional Sessions Judge for trial. 5. During trial the prosecution examined 14 Witnesses in all. Thereafter, statements of the accused} appellants were recorded under Section 313 of Cr.P.C. in which they denied the evidence appearing against them in the prosecution case and pleaded innocence and false implication. 6. Learned trial Court after hearinh counsel for the respective parties convicted and sentenced the aocused! atipellants as mentioned in naragra'ph one of this judgment. 7. Learned counsel for the appellants submits that so far as involvement of appellant Balram Jangde in crime in question is <':on.cerned, as per case of the prosecution itself it would be evident that he reached on the spot after injured Bhumieshwar had received injuries in the incident and allegations against him in the First Information Report are that he assaulted injured Jitendra? however, on the basis of improvement made by the witnesses appellant Balram has also been convicted under Section 307,!34 of the IPC. He further submits that t11€r€ is 110 evidence available 011 recm‘d i11at the appellants in:t€nd6d to Cau'se damth of injured BhuvneShwar, 011 th€ other hantL there i$ gumtcient evidence avajlable 011 ramrd that the incident accurred between cemplajnallt Tujeia and accused Ramdulari 85 Dileshwar and when Jitendra {is Bhumleshwar intervened, they were also beaten 13v the a13pe11a11ts. The dectm‘s, whe have examined Bhumieshwar. have 1101: stated that the injuries present over his nerson weee su§cient t0 cause death in the ordinary couree of nature. Lastly, it was argued that taking inta consideration the manner in which the offence was cennnitted and alsa considering that there is evidence availabie on record that in the same incident the appellants also sustained injuries, even if the appeilants are held guilty under geetian 307; 34 of IPC, the sentence of 7 years impoaed on them, is too excessive and the same des ewes to he inodjned suitabh-n 8. Reiismoe is placed on the judgment n1 the matter of ahanabhai Bhutabhat Parmar Vs. Etate of Gujarat reported in AIR 19?“? SC 133$. é). On the other hand) learned counsei for the State supported impugned inclement of the trial Court. 1Q. I have heard learned counsel for hoth the parties and have perused the records as also the impugned judgment. 13.. Conviction of the appellants is hased on the statements of injured eyewitnesses Tujela {PW— t), Bhuvneshwar (PW-3] and Jitendra (PW—7). The Court below considering the evidence‘of the above Witnesses, which is also corroborated from the evidence. of PW—Q Nathrain. PW—o Jeetrarn and FEE—8 Firatram, has drawn an inference regarding involvement of the apnellants in the crime in question. Further, relying upon the evidence of Dr. wita Dhruv {PW—9) and Dr. Anil KP. Singh {PW-13}, the Court below has held that the injuries present ovefthe person of Bhuvneshwar were sumcient to cause his death in the ordinarv course of nature. 12. PW—l ’l‘ujela is the complainant who has lodged the report of EXP} 1. His evidence is to the enect that the appellants Dileshwar 85 Ranidnlari enraged by his advice not to use filthv language as womenfolk also reside in the locality, went inside their house, hrought y iron rad &0m their 110u3e and startsd assaultmg him. Wham his father Bhummshwar alld brother Jitendra camé and intervened, Di1eshwar. Ramdulari and Balram also assaulted his father, as; a result of which he became uncmmciaus and fell on the g‘O‘und. They 21130 assaulted Jitendra. Haweverg imm perusai of the FIR of EXP] 1 it is naticed that this witness, who has; 10dged the FIR, hass mentimled. therein their Dileshwar and Ralnduiari assaulted his father" who feE on the ground after becoming unconscwus and thereafter: Bairam came there armed with danda and assaulted Jitendra over his head and hand. There is no allegation in the FIR that the appellant Ball'am assaulted Bhumieshwar . 13. PW—Q Nathram has also named Rarndulari and Dileshwar as the iaersens whn particinated in the assault and he has denied the pres ence of Baltani an the iilace of incident. He has heen declared hestile and crass—examined by the masecution. However: in the cross—examination also no suggestion was given to this Witness that Baltam was present a the time of incident or he participated in beating injured Blinmieshwar. 14. PW—S Bhuvneshwar has alleged that Ranidulari and Duleshwar armed with rod and Balram armed with bamboo lathi were assaulting Tujela and when he intervened, they started assaulting him also, as a result of which he sustained injuries. He has been confronted with his diarv statement of EXDK l, in which name of Balrain has not been mentioned. However. he has not odered any explanation for omis sion of Baham’s name in his diary statement. 15. PW—7 Jitendra has also alleged‘that all the three apiiellants partioinated in assaulting all the three injured persons. However 5 in his diary statement of EXDIQ this fact is not, mentioned that anpellant Balram assaulted Bhumleshwar. Thus. from the evidence of the above witnesses, the allegation against appellant Balram that he assaulted Bhuvneshwar, also, appears to he doubtful. However, considering the evidence of the above witnesses, I am of the opinion that Raindulari and Dileshwar assaulted Bhumeshwar and the two injured Witnesses Tujela and Jitendra and caused them injury Whereas appellant Balram assaulted. only injured Jitendra, has been established. 16. Now coining to the question of nature of injuries sustained by Bhuvneshwar {PW-3}, Dr. Anvita Dhruv (PW—9), who examined all the X z t injumd p€1"3011s including BhuvneShwar has stated in her dcpasition that on €Xaminatio11 0f Bhummshwar; 81m found (i) laceratai wound on 1€ft side of parietal portian of the skull with irrégular margin of 3ize ’? x 5 cm, fresh bloUd was oozillg §011L the wound; (ii} 0116 contusion a, tenderneSS {war right halld elbow and 1'0i11t mcwement 0f iaint was restricted: {iii} lacerated wound over left halld below elbow ioint with irregular margirl 0f size 2 X 4 om, fresh blood was oozing from the injury, movemeut was restricted; mid (ivj there was also injury mesent over lateral angle of the eye. $he had advised X—ray. On fuither queries she haS opined that the injuries preSent over the pereon of Bhum‘reehwar could cause his death had he not been treated in time. So far as irliuries m‘esent over the nersorrs of Jitendra and Tuiela, are concerned, the same have been deecribed 21$ aimple in nature and not euihczient to cause their death. o 17. PW—l3 Dr. Ami KP. Singh. who is the radiologist. has moved the radiological report of EX.P,3 19 of Bhumreshwar and stated that there wae a fracture of left trorrtoparietal bone of Bhmmeshwar arrd fracture of left elbow olecrarlon bone. He has also advised OT. scar1 of Bhumreslm'ar. There ie evidence available on record that Bhumleshwar was admitted irr the hoepital for 25 days as indoor patient 18. Thus. looking to the medical evidence available on record, l am of the considered ooirrion that the trial Court on the baeis of evidence available on record. has rightlv convicted Dileshwar and Ramdulari under Section 307} 34 of IPC. Similarly: conviction of the appellants under Section 3'23j34 of IPC for causing simple injurieg to injured Teiula and Jitendra is strictly in accordance with law baaed on the evidence available on record. However, conviction of appellant Bah-am under Section. 30?.334 of IPC for attempting to commit murder of Bhuvneshwar, cannot be sustained for the reasons stated above. 19. Taking into consideration the arguments advanced by learned counsel for the appellants based on the judgment in the matter of .S‘hanobhoi Diwlabhai Parmar (supra) that in the facts and circumstances of the present case, conviction under Section $077 34 of IPC is too excessive, while maintahn'ng conviction and sentence of all the appellants under Eseotion 323,? 34 of IPC and also maintaining conviction of the aopellants Dileshwar and Ramdulari under Section 30?; 34 0f IPC, they are $ent€r1ccd t0 undargo RI for fcxur years in place of savax yewS. 20. In th€ result: the amaeal yartly succ€ed$. Conviction and Santenm 0f thc: apIJellant Balranlundar Séction $077,334 0f IPC 1:; wit a5id6. He is acquitted 0f the abOV€ charga Howwa, his convictiarn and sentcnce undar Section 323} 34 is maintained. Thta aypellant Bakam is 011 bail, thaefme: his bail bands am callcgkd and he is directed to surrtsnder bsfom the irial Court for undergoing the remajmhg 3entence under Section 323j 34 of the IPC. Commotion and sentence 0f the appellants Dileshwar and Ralndulari uncier Section 323,}34 is maintained. However, while maintaining their conviction under Section 367i 34 of IPC, the Sentence imposed upon them thereunder is reduced to four years” RE and fme of Rs. 1000f —each. Sdk Judge DHmENDRA MISHRA k/