. INTHE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C. G.) CRIMINAL APPEAL N0. s'4~0 /2008 fS.B.) APPELLANTS ^. ^..^ 1. Niraj Singh @Kukka S/o Late Shri Suresh Singh aged 25 years , Resident o f - Revenue Colony , Chantidih, Police Station Sarkanda , District - Bilaspur (Chhattisgarh) 2. Ankur@Chunnu Bajpai S/o - Premdutt Bajpai, age23 yrs, R/o - Revenue Colony, Police Station Sarkanda, District - Bilaspur (Chhattisgarh) ] !JI rt* f~l i3.:i •:„w: VERSUS RESPONDENT State of Chhattisgarh Through Police Station - Sarkanda, District - Bilaspur (Chhattisgarh) APPEAL UNDER SECTION 374(21 OFTHE CODE OF CRIMINAL PROCEDURE .1973 ^ HIGHCOURTOF CHHATTiSGARH : BiLASPUR Single Benehi Hon'bie Shri Manindra Fvlohan Shrivastava. J. Criminal Appeai N0.540/200S APPELLANTS Niraj Singh @ Kukka & another Versus RESPONDENT State of Chhattisgarh Present: - Shri Dharmesh Shrivasiava, counsei for the appeiiants. Shri SaHsh Gi-'Dta. Government Ad'/ocate for the resBcndsnt- Criminai MRDeaiNo.edwZuGo APPELLANTS Vijay Pandey and others Versus RESPONDENT State of Chhattisgarh Present: • Shri Manoj Mishra, counsgl for the appeiiants. Shri Satish GuDta. GovernmeritAdvocate fortrte respondent. CrLminaLAoDeaiNQ.S88f2008 APPELLANT Sukhdeo Manikouri Versus RESPONDENT State of Chhattisgarh » Present: - Shri Ajay Ayachi.counsei for the appeiiant. Shri Satish Gupte, Government Advocate forthe respondent CRiMiNAL APPEAL UNDES SECTiON 374 i2i OF THE CODE OF CRin-iiNAL PROGEDURE ORAL JUDQMENT (Delivered on 6"' December, 2010) Tha aforesaid three appeals are being disposed off by this common order. The appeats arise out of judgment of c&n'viction and sentence dated 5/6/08 *? y tj passed by Speciai Judge in session triai No.33/08 by which the triai Court after hoiding the appeiiants guiity of commission or offence charged with Section 294, 147, 148, 307/14a iPC and sentenced t6 undergo R.i. for six months, under Section 148 iPC, six months R.i. and under Section 307/148 iPC, five years with fine of Rs.500/-, in defauit, further R.l. of six months. 2. The judgment of conviction and sentence are impugned on the submission that the appeilants (except Niraj Singh @. Kukka who has died) have been convicted under Section 307 with the aid of Section 149 iPC, even though there is no eviuenc& to this effect and as frie injury caused on the frontal part of the head could not be proved to be grievous in nature, the conviction of the appeiiante under Section 307 is not sustainabie In law. 3. Before proceeding to de-ai with the case, it is stated by learned counsei for the appeliants in criminai case No.540/08 that appeiiarit-Neeraj Singh @ Kukka died whiie undergoing imprisonment under the impugned judgment of conviction and sentence. 4. The case of the prosecution is that on 14/11/07, at about 10 P.M. in the night, while the victim-lvlukesh Chadda (PW4) wasstanding near betei shop and talking on his mobiie, the appeliants and Neeraj Singh (deceased) reached at the spot and demanded rnoney for consumption of iiquor, which was denied by Mukesh. Thereafter.the appeliants started abusing and Neeraj Singh @ Kukka assauitea'and infiicted Injury with the heip of iron rod on the iegs of the victim- Mukesh, upon 'w'hich iViukesh feli down and thereafter aii the appeliants assauited him with the heip of iron rod and club resuiting in injury. On aiarm raised by Mukesh, Sonu Kochar (PW6), Umesh Mishra (FW7), Anii Singh and Pintu Mishra the frontai bone. FiR was lodaed bv Ravi Chadda vide exhlb't P/3. T approached the spot. The brother or victim-Mukesh took the victim for immediate medicat assistance and he was examined bv Dr. ^4.S.Haque who found three injuries on the person of the victim. Thereafter, he was referred for Radioiogy report as also for C.T.Scan. The Radioiogy and X-Ray reports disciosed fracture on the right ieg whereas the C.T. Scan report disciosed, undispiaced fracture iri he biood stained ciothes of vlctim-iv'iukesh were seized vide exhibit P/4 arid memorandum was taken from Niraj Singh during investigation, vide exhibit P/5 and iron rod was seized vide exhibit P/6. From appeliant-Ankur Bajpai, club was seized on the memorandum exhibit P/7. vide seizure memo exhibit P/o. A motor cvcie- Baiaj Discover, NO.C.G.10-EC 7601 was aiso seized from the appeiiant-Ankur Bajpai. On memorandum exhibit P/5 of appeliant-vijay Pandey, one club was seized vide seizure memo exhibit P/10. From Biiii Khan, one wooden stick was seized vide exhibit P/16 whereas from appeiiant-Sukhueo, one stlck was seized vide exhibit P/17 and frorri appeiiant-Sanjay Tandori, one stick was seized vide exhibit P/26. After compieting jnvestigation, taking statements and preparation of spot map and obtaining various reports of Radioiogy and C.T.Sean, a charge sheet was filed, upon which, charges were frarned against the appeiiants for commission of offence under Section 294,147,148,307/149 IPC. 5. The appeiiants abjured their guiit. In order to prove the case of the prosecution, ten witnesses were examined. in their statements under Section 313, the appeilants denied circumstances appeared against them and pleaded faise implication.,The ieamed trial Court after compteting triai, heid the appeliants guilty ofcommission ofoffence under Section 294,147,148, 307/149 IPC. ls:a gBi 6. Leamed counsei for the appeilants argued that in so far as conviction under section 307 IPC is concemed, the same is not at all made out, even from the testimony of victim-Mukesh (PW4). it is aiso submitted that the appeiiants have been convicted for commission of offence under Section 307 iPC with the aid of Section 149 even though from the e'vidence on record, no such case is made out. Further submission is Uiat from the evidence of Mukesh (PW4), the fracture injury on the ieg was caused by Niraj and other two injuries caused on the person of the victim are oniy sirnple in nature as ifte C.T. Scan report has not been produced and the X-Ray report did not disciose any fracture on the frontal bone. Learned counsei for the appellants submitted that taking into consideration the totaiity uf cireumstances and nature of injuries sustained and in the absence of there being any reliabie evidence of formation of an uniawfui assembiy in prosecution of comrnon object of cornmitting murder, the appeiiants are entitied to be acquitted frorn the comrnission of offence under Section 307 iPC. 7. On the other hand, iearned State counsei supported the judgment of conviction and sentence. Learned State counsei submitted that Mukesh (PW4) has stated in his evidence that ali the appeilants aiong with deceased appeiiant- Niraj had arrived at the spot and demanded money for consumption of liquor and thereafter they assauited him which resuited in grievous injury inciuding injury on the frontal bone caused bv rod and ciub. He submlts that from the evidence. it is cieariy borne out that even if victim feil down, the appeiiants kept on assauiting him resuiting in grievous injury, partic-uiariy on the frontal bone which may cause death aiso. He submits that in view of the reiiabie evidence of victim-Mukesh corroborated by medicat evidence, fracture of leg and frontai bone, com'iction of i the appeliants under Section 294, 147, 148,307/149 iPC does not warran; any interference in appeai. 8. Mukesh (PW4) who is the victim of the aiieged incident has stated in his evidence that whiie he was standing in front of the betei shop and taiking on his mobiie, the appeiiants and deceased-Niraj arrived at the spot. His evidence shows that the dispute arose on account of certain money to be paid for consumDtion of iiauor. He has stated that apDeliant-Nirai assaulted with the helo of a rou on his rig'nt ieg upon which he feii down and thereafter the appellants assautted him with the heip of ctub and rod due to which, he received injury on his both legs and near the forehead. ^. 9. The manner in which the dispute occurred in a spur of moment which started with scuffle and abuses and thereafier assauit and when the victim- ?viukesh has stated that he received three injuries, it c-annot be said that ail the accused pereons inriicted injury but their presence at the spot is cieariy proved. 10. Dr. S.Fv'i. Haque (FW8) who provided immediate medicai assistance to the victim-Mukesh has stated that upon examination, following injuries were found- a. Lacerated wound on the right teg, 3x1 x1 cm. and sweiling. b) One iacerated wound 3x1 cm and sweliing on the left ieg. c) One lacerated wound in the center of the frontai bone 6x1 x1 cm. He has aiso deposed that the injuries appear to be caused by hard and blunt object. Dr. J.M. Khakha (PW1) has deposed that in the X-ray report ofthe right ieg, though there was fracture in the right ieg but in the X-ray of the frontai bone ., ; t.Ai..d<,>it ai ^: of the head, no fracture was found and suggested for C.T. Scan report. Dr. Anil Pratap Singh (FA'3) in his examination has deposed that in the C.T. Scan examination, undisplaced fracture line was found in the right frontai bone but the brain metai was found normai. in his cross examination, he admitted that C.T. Scan report is not produced and has denied that no C.T. Scan was done. 11. From the iniuries which are Droved by the prosecution. the victim received one fracture injurv on his riaht teg. in addiuor!. he received two iniuries, one in the teft iea and one in the frontai bone. Thus. 'n ail, three iniuries were sustained. There is no other iniurv of anv other kind proved bv the Drosecution. in so far as injury caused on the right leg is concemed, the same is grievous in nature. The other injury which is found on the ieft leg is apparently simple in nature and cannot be said to be grievous injury. As far as singular injury on the frontai bone is concerned, Dr. J.M. Khakha (PW1) has stated that upon X-Ray, no fracture was found. Dr. Anil Pratap Singh (PW3) though states that undispiaced fracture iine was found, neither C.T.Scan report has been produced nor any other report has been produced to support such version. Considering the X-Ray report which did not disciose any fracture on the frontai bon6 and in the absence of any C.T.Scan report by the prosecution, it is to be held that the prosecution has failed to prove beyond reasonabie doubt that the victim-Mukesh received any bony injury on the frontai bone and the evidence on record is not sufficient to sustain a finding of serious injury / fracture on the frontai bone. The testimony of Mukesh (PW4) itseif shows that after receiving first injury caused by deceased-appeiiant ,- Niraj, Mukesh feli down. Dr. S.M. Haque (PW8) has deposed in his testimony that injury on the frontal bone couid be caused upon fallina. i- w <7- 12. Though Mukesh (PifV4) states Uiat after he feii down, ali the appeilants started beating him with ttie heip of rod, ciub etc., in ail, three iniuries are proved on his person. He himseif has deposed that Niraj had assaulted on his right ieg with the help of a rod. Thus, the other two injuries are one on his left ieg and one on his frontai bone. There are no other injuries proved by the prosecution. This cieariy shows that the tw'o injuries couid be caused either by one or by two persons and not rnore than that. The manner in which the incident has happened near betei shop, case of commisslon of offence under Section 149 is not made out and therefore conviction of the appeliant for alleged commission of offence under Section 307 with the aid ofwith the aid of Section 149 iPC, is not made out in view of the iaw iaid down in the case of State ofJJ.P^ v. Gajadhar Sinah and others. 2009 (11 CCSC 479 (SCl. 13. However, from the evidence on record, it is proved that during course of quarrei, the appeliante and deceased appeiiant-Niraj Singh had caused injury on Uie person of the victim - Mukesh. Under these circumstances, considering the nature of injuries which are sustained by e victim-Mukesh on his ieft ieg and in the frontai bone, appeiiants are at the most to be heid guiity under Section 323 IPC and not more than that. Accordingly, the impugned judgment of conviction and sentence, in so far as conviction under Section 307 / 149 iPC, cannot be sustained in iaw and the conviction of the aoDeilante under those Sections is set aside. 14. in view of the discussions as above and the findina which has come on record, the conv-iction of the appeiiants is aitered to Section 323. it is stated that appetiant-Sukhdeo had undergone R.i. for more than 1% years whereas appeilant- Vljay Pandey is in jaii since 4/1 ?08, Biiii Khan since 4/2/08, Sanjay Tandon since 4/2/08 and Anis'ur has already undergone more than 1% years of sentence before he was granted bail by this Court. Considering the entire evidence, nature of injuries and that the conviction of the appeiiants is attered to Section 323, In piace or Section 307, and sentence is reduced to the period undergone by each of them. SWs 15. The appeiiants-Biiii lyian, Sanjay' Tandon, Vijay Pandey shall be reieased forthwith. in so far as appeiiants-Ankur Bajpai and Sukdeo are concemed, they are on bail, granted by this Court. Their baii bonds stands discharged. They need not surrender. AccordinQlv, aii the aDDeals are aliowed to the extent indicated above. Sd/- Manindra Mohan Shrivastava Judge