l^c^ !l i/ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BBNCH HON'BLB MR. T.P. SHARMA SE HON'BLE MR. RANQNATH CHANDRAKAR^JJ. Cr. Appeal No. 139 of 1995 APPBLLANTS 1. 2. l^i^ii-:^^^ rrf^iis;:.;?;®, RESPONDBNT Shyaaau alias Shyainkumar son of Hukmat Rai aged 27 years. (DEAD) Ashok S/o Nakchhedu aged 27 years, Both R/o Risaipara, P.S. Dhamtari, Tahsil Dhamtari, District Raipur M.P. State of Madhya Pradesh. CRIMINAL APPEAL UNDER SECTION 374 OF CRIMINAL PROCEDURE CODS. 1973. Present- Mr. D.N. Prajapati, Advocate for the appellants. Ms. Madhu Nisha Singh, P.L. for the State/respondent. ORAL-JUDGBMBNT (Passed oa 29/08/2011) The following iudgment of the Court was passed by T.P. Sharma, J:- 1. Challenge tn fhis appeal is to fhe judgment of conviction and order of sentence dated 19/1/1995 passed by Additional Sessions Judge, Dhamtari m Sessions Trial No. 354/91 whereby and where iinder after holding the appellant Ashok along with deceased co-appellant Shyamu alias Shyamkiimar guilty for the coiamission of offence of culpable homicide amounttn^ to murder of Hunanshu and causing sunply mjur^' to // Bhaskar Dewangan & Dtnesh Dewangan, wl'ule acquitting other co-accused persons convicted the appellant under Sections 302 read with Section 34 & 323 read with Section 34 of (he Indian Penal Code aiid rigorous sentenced imprisonment for Itfe & unprisonment for one year. 2. On account of death of appellant Shyamu alias Shyamkumar on 1/10/2007, crmunal appeal filed on behalf of the appellant Shyamu alias Shyamkumar is abated and dismissed as abated. 3. Conviction is impusned on the ground that wifhout any iota of evidence sufficient for conviction of appeUant, Court below has convicted and sentenced the appeUant as aforementioned and thereby committed an Ulegality. 4. As per case of the prosecution, on fateful day of 30/3/91 at about 9.45 P.M. appellants were assaiiltin^ Bhaskar Dewangan and Dinesh Dewangan by stick, at the same time while unfortiinately Himanshu (smce deceased) tried to tntervene and snatched the stick from present appeUant and to save other complatnant, tried to assault present appeUant and deceased co- appellant Shyamu alias Shyamkumar by stick, present appeUant assaulted him by stick, Shyamu aJias Shyamkumar took out the kntfe and caused fatal injun? resulting tnto death of Htmanshu. First Information / "\.''' -Zo 5. Report was lodged vide Ex. P-23. After siimmoning the witnesses vide Ex. P-2, inquest over fhe dead body of Himanshu was prepared vide Ex. P-1. Blood stained Currencv Notes were seized vide Ex. P-3 from. fhe pocket of deceased. Jeep was seized vide Ex. P-4. Blood stained and platn soil were recovered froin the spot vide Ex. P-5. CKhapals were seized from the spot vide Ex. P- 6. Two Atlas Cycles were seized from the spot vide Ex. P-7. Dead body of Himanshu was sent for autopsy to Govt. Hospital, Dhamtarivide Ex. P-10A. PW9 Dr. R.H. Mishra conducted autopsy vide Ex. P-10 and found incised wound over chin, chest & back. Abrasions over face, hands, thigh, legs, knee 85 puncher of left lungs as a result of mjury over the chest. Mode of death was shock. Bhaskar Dewangan was also examined vide Ex. P-12 and found tnjuries. Dinesh Dewangan was also examined vide Ex. P-15 and found mjiiries. Sealed cloths of deceased and viscera were seized vide Ex. P- 17. Stick recovered from the Krishnarao Magar vide Ex. P-20. Blood stained cloths were seized from the present appellant vide Ex. P-21. Statements of the wltnesses were recorded under Section 161 ofthe Code of Criminal Procediu-e, 1973 (in short the Codel. After completion of fhe investieation charge sheet was filed before the Judicial Magisti'ate 4 Fu-st Class, Nagri who in tum committed the case to the Court of Sessions, Raipiir from. where leamed Additional Sessions Judge, Dhaiutari has received fhe case on transfer for trial. 6. In order to prove the guflt of the appellants/accused persons prosecution exanitned as many as 28 witnesses. 8 accused persons were examtned under Section 313 of the Code where they denied the cu'ciimstances appearmg against them and pleaded innocence and false implication m the crime m question. 7. After affording an opportunity of hearing to the parties, whUe acquitting 6 accused persons, Court below convicted and sentenced the present appellant and deceased appellant Shyamu alias Shyamkumar as a&rementioned. 8. Mr. D.N. Prajapati, leamed counsel for the appellant and Ms. Madhu Nisha Singh, P.L. for fhe State/respondent are heard. Judgment impugned and record ofthe Court below perused, 9. Leamed counsel for the appellant vehemenUy argued that although evidence of alleged injured eyewitnesses PW16 Bhaskar Dewangan, PW17 Dinesh Dewangan, PW18 Alok Pawar, PW22 Krishnarao Magar, PW24 Sukhu @ Sandeep Kumar Verma & PW25 Siiml whose ^ evidence reveal fhat present appeUant has not caused injur;' to Shyamu alias Shyamkumar but in the light of evidence of PW22 Krishnarao Magar, he is not niuch disputing the fact that present appeUant along with deceased co-accused Shyamu alias Shyaiakuiaar have not assaulted Bhaskar Dewangan and Dinesh Dewangan and have also not assaulted Hlmanshu stick but further submits that he has caused injury to Hunanshu by stick at that ttme he was not having any knowledge that co-accused Shyamu aMas Shyamkumar was holding knife and he will cause fatal inj1-115' by knife to Himanshu fherefore, conviction of appellant under Section 302 with fhe ald of Section 34 of tJtie Indian Penal Code was notjusttfied. 10. Leamed coiinsel for the appellant further argued that even ifit is considered that deceased accused/appeUant Shyamu alias Shyamkiunar has caused fatal inji-uy to Himanshu resulting into his death then the cu-cumstances and evidence proved on behalf of the prosecution clearly shows fhat Hiaianshu after snatehing the stick from appellant has assaulted appellant and deceased appellant Shyamu alias Shvamkumar fhen Shvamu alias Shvamki-tmar has caused such injuiy shows fh.at incident took place all of a sudden and on sudden quarrel, co-accused Shyamu (^ allas Shyamkumar has caused aforesald fatal injury and present appeUant was in custody for more than 1 1 years. 11. On the ofher hand, leamed coLmsel for the State/respondent opposed the crimmal appeal and argued that prosecution has adduced siifficient evidence to connect fh.e appeUant in crune tn question and Court below has rightly convicted and sentenced the appeUant as aforementioned. 12. In order to appreciate the arguments advanced on behatf of fhe parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case, homicidal death as a result of fatat tnjury foiind over fhe body of deceased Himanshu has not been substantially disputed on behatf of the appeUant on the other hand, ofherwise also established by the evidence of PW9 Dr. R.H. Mishra and autopsy report Ex. P-10. Death of Himanshu was homicidal tn nature. Defence has also not disputed stmple inji-in' found over fhe body of Bhaskar Dewangan and Dmesh Dewangan ofherwlse same has been also established by the evidence of PW10 Dr. C.K. Smghal and mjur}' reportsExs. P-12 & P-15. 14. As regards fhe complicity of appellant in crime in question, conviction of the appellant is substaiitially based on the evidence of PW22 Krishnarao Magar and other eyewitnesses PW16 Bhaskar Dewangaii, PW17 Dmesh Dewangan, PW18 Alok Pawar, PW24 Sukhu @ Sandeep Kumar Verma & PW25 Sunil who have deposed that deceased Himanshu intervened quarrel and snatched stick from the appeUanf thereafter he assaulted appeUant and Shyaniu alias Shyamkum.ar by stick then Shyamu alias Shyamkumar took out kmfe and caused fatal injury to hiin shows that after snatching stick appeUant has not caused any injury to deceased Himanshu and he has not shared comiuon intention of co-accused Shyamu alias Shyamkumai- but the evidence of PW22 Krishnarao Magar clearly reveals that both the appellants firstly assaulted Hunanshu by stick, fhey had also assaulted other complainant Dinesh Dewangan and Bhaskar Dewangan by stick. They were present on the spot for long ttm.e, they were causmg tnjun7 to persons shows that they were having siifficient knowledge of weapon with they were holding, when appeUants were assaiilted by Himanshu fhen Shyamu alias Shyamkumar took out kntfe and caused fatal tnjury to Himanshu shows tliat during course of quarrel, both the parties were causing injuiy to each ofher. Initially Himanshu was not causing mjniy to appellants but to save htmself and others, he started causing injury then all of sudden co- accused Shyamu alias Shyamkumar took weapon upon hun by knife. The act of appeUant since its inception is not separable from fhe act attributed to co-accused Shyamu alias Shyamkumar but the fact reinain that Shyaiau alias Shyamkuraar has caused injury on sudden provocation and on sudden quarrel. These evidence are suflicient to establish that bofh appeUants have caused homicidal deafh of Hiinanshu in sharinj common mtention but their act does not travel beyond the scope of Section 304 Part-I of the Indian Penal Code alons witfa Section 323 read with Section 34 of the Indian Penal Code. Wlule convicting the appeUant under Section 302 read wifh Section 34 of the Indian Penal Code, Court below has cominitted an iUegality. 15. For the foregotng reasons, criminal appeal is partly allowed. WhUe maintaintng conviction and sentence of appeUant under Section 323 read wifh Section 34 ofthe Indian Penal Code his conviction and sentence under Sectton 302 read wifh Section 34 of the Indian Penal Code is altered into under Section 304 Part-1 of ffae Indian Penal Code and sentenced custodial period of 6/4/1991 to 24/4/2002 i.e. for about more than 11 years. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge