^ ^^ -(£• h~; CFOOOOOS843!?' OMstonBendi C'^s"^' IN THS HIGH CQURT OF MAEHyAPRADESH AT O'ABALPUR CRIMINAL APPELLANT ffi \"^S^Qbf 1995 \^ ^' -2^ APPELLAtlTS ACCUSED IN JAII< /rlv rUw^MS^ ^ ^ ^ SL/-^'i^=^!...S..S$i L'.^.BHIKAK DAS, son of Pyarodas,Panika, aged 55 years. 2«^,--tJEEWAN,'.son of Bhikam das,aged 18 yrs. 3« SURiTA BAI, w/o Bhllihandas, aged 50 yrs Mili resideats or village Tiakapar, P »S . Doiigargarh,dlstriet Rajnandgaon* Vs \ . - • ^ ' . .' RESPONDENT. Stqte of Madhya Pradesh through the Dlstr3.ct Magistrate, Kajnandgaon APPEAL ONBER-'-SECTIOH 374 'IOP.THE CODE OE- CRIMIN-AL "gROOEDtSiE. EI! -«*- COURT OF JU&ICATURE AT BILASPUR. CHHATTIS6ARH (DIVISION BENCH) Crimina! <4ppeal No. 1328 of 1995 •» Bhikam &as and others - Versus - •. State of Madhya Pradesh (now Chhattisgarh) JUb&MENT FOR COKSIbEMTION Sd/. L.C. Bhadoo Judge HON'BLE MR. JUSTICE &HI N&RA^M!SHRA Sd/- DHIRENDRA MISHRA Judge P05T FOR JU&6M0\IT ON n^JANUARy. 2006 Sd/- L.C.BHADOO Judge BSI l^ :lH B ,Hils "^BSII J'la 'ii! lai fi'B ^iF^i i.^ Bttg M SK-g /' - ss !!)1 ^&^^SL BSEBB EfSB 33^. HI6H COURT OF JUDICATURE A~T BILASPUR fCHHATTISGARHl &IVISION BENCH": - HON'BLE SHRI L.C. BHA&OO ANb J-BLE SHRI DHIRENDRA MISHRA, JJ. Criminal Appeal No. 1328 of 1995 Bhikam Das and others - Versus - State of Aladhya Pradesh (nowChhattisgarh) Present: - Shri H. P, Agrawal, Adwcate: Shri U.N.S. Deo, Addl. Public Prosecutor; For the appellants. For the State/respondent. JU 06 M E NT (Deiivered on 3'-) January. 2006) The following judgment of the Court was delivered by L.C. Bhadoo J: - 1. Appellants namely BHikam Das, Jeevan and Smt. Surja Bai have preferred this appeal under Section 374 (2) of the Cr.P.C. questioning the iegality of the judgment of conviction and order of sentence dated 24 August.1995 passed by learned Sessions Judge, Rajnandgaon in 5,T. No.52/94 whereby learned. Sessions Judge after holding accused/ s«»- .oppellants namely Bhikam &as, Jeevan and Smt. Surja Bai guilty for commission of?offence urider Sections 302 read with Section 34 nnd 323 read wit.h Section 34 ofthe I.P.C., sentenced each ofthe accused/ • '- appellants to yndergo imprisonment for life and to undergo R.I. for 3 months respectively. However, the accused/appellants were acquitted of the chorge under Section 307 read with Section 34 of the I.P.C.. 2. Thecase of the prosecution, in brief, is that on 31-1-94 at nbout 7 a.m. when injured Khorbehra (PW-3) was going to agricuitural field to bring rice and straw of rice, he also called his son Narayan to accompany him. When his son was passing through.the street, accused Jeevan abused him saying 'whether street belongs to your fother' and he felled down Narayan. Thereafter, Khorbehra and Narayan entered their house. However, the accused/appellants also entered the house of Khorbehra, started attacking Narayan and Khorbehra. Indravati (since deceased), mother of Narayan, was cleaning utensils. Seeing this she came to rescue Narayan. Accused Bhikham picked up the crow/bar, which was lying in the .house of Khorbehra, Jeevan picked up the rammer which was lying in the house of Khorbehra and ottacked Indravati with the same. Surja Bai also assaulted with the stone, as a result of which Khorbehro (PW-3), Teras Bai (PW-7) and Narayon (PW-8) sustained the injuries. Indravati received lacerated wound on the left parietal region, bone was also fractured, as a result of which she died. On coming to ^now^about the incident through Netrarn, PW-1 Komla Bai, Kotwariri, came to'the house of Indravati. On enquiry, Indravati ^- , narrated that the accused persons have attacked. There were injuries on the heads 'of Indravati and Nnroyan. Blood was oozing out of the injuries of I.ndravati. The matter was reported by PW-1 Kamln Bai in 11 '^t the poiice station Dongergarh under Ex.-P/6. Khorbehrn also reported the matter to the police station at about 9.30 a.m. under Ex.-P/20. 3. Initiolly the offence was registered under Section 307 of the I.P.C., however, later on, when Indravati was being taken_to the hospital in a bullock cart, she succumbed to the injuries on the way, therefore, first information report (Ex-P/23) was registered. The investigating officer left for the scene of occurrence, after giving notice (Ex.-P/4) to the Panchas, prepared Panchanama (Ex-P/5) bf the dead body of the deceased. He took into possession the crowbar and upper under garments of accused Bhikam from the possession of Bhikham under Ex.- P/l. He also took int& possession one rammer and shirt from the possession of Jeevon under Ex.-P/2. He took into possession one "saycs" from Surja Bai under Ex.-P/S. The blood stained soil, plain soil and one stone were taken into possession fr'om the plnce of occurrence under Ex.-P/7. The dead body of Indravati wcis sent for postmortem examination to the Community l-1ealth Centre, Oongergarh where Dr. A. K. Tsmrakar (PW-4) conducted the postmortem on the dead body of deceased Indravati and prepared the report Ex.-P/S. He opined that the cause q.f death was head injury and shock. The nature ofthe death jvas homicidal. &r.' Tamrakar, also examined injuries of Khorbehra on ^1»- , whose body 5 injuries were noticedand prepar'ed injury repori' Ex.-P/9. He also exaro-ined injuries of Narayan and prepared the injury report Ex-P/10. He ~also examined injuries of Teras Bai and prepcred the <\_jnjury repqrt Ex.-P/11-A. The site plan (Ex-P/lT) was prepared by Halka Patwari. The blood stained articles were sent for exarninotion to the Forensic Science Laboratory, Raipur from where reports Ex.-P/25 and Ex.-P/26 were received. After completion of the investigation, charge sheet was fited against the accused in the Court of Judiciat Magistrate, 1 Class, Oongergarh, District: Rajnandgaon, who in turn committed the case to the Sessions Judge, Rajnandgaon for trial. 4. The pr'osecytion in order to establish the charge against the accused persons examined 12 witnesses. Statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which they denied the prosecution evidence appearing against them and stated that they are innocent and have'fceen implicated in a false case. Learned Sessions Judge after hearing arguments of Public Prosecutor and counsel for the accused persons, convicted and sentenced each of the accused cs mentioned in pam-l ofthisjudgment. » 5. We have heard iearned counsel for the parties. 6. The homicidal death'of Indravati is not in dispute. Apart from that, from the evidence of PW-4 Dr. A.K. Tamr'akar' who conducted the postmortem on the dead body of deceased Indravati, it is established that In^avati received 2 paraltel lacerated wounds on the left side of tempor'al area in the si%e of 5 cm. X 3 cm. and there was swelling around the injury. On opening the head, temporoi bone was found fractured. Brain was congested and clotted blood was present. He has stated that the cause of death was head injury and same was homicidal ;' \in nnture. ' His report is Ex.-P/S. This medical evidence further- v corroborcrt-ed from the evidence of PW-1 Knmla bai before whom Indravati rnade ornl dying declaration, PW-3 Khorbehra, PW-7 Teras Bai and PW-8 Narayan, the injured witnesses who received injuries in the same incident. 7. Now, comin9 to the involvement of the accused/appellants in inflicting the injuries on the persons of Indravati, PW-3 Khorbehra, PW-7 Teras Bai and PW-8 Narayan. In this connection, PW-3 Khorbehra has stoted that on the fateful day in the morning he was going to the agricultural field to bring rice ond straw of rice. He also asked his son Narayan to accompany him. When htarnyan was passing through the street, accused Jeevan abused him in the name of father, and thereafter he started quarreling. Even the accused persons entered the house of Khorbehra where they assaulted Khorbehra and Narayan. When Indravati came to intervene, accused Bhikam picked up the crowbar (Sabbat) and accused Jeevan picked up the rammer which were lying in the house of Khorbehr-Q and attacked with the same on the head ofthe deceased. Accused Sur'ja bai also assauited with the stone, as a result -of which Indravati received lacerated wound over left tempora! reyon and even parie^al bone was fractured. The evidence of Khorbehra (PW- •^ / . • 3) corroborated by th^evidence of PW-7 Teras Bai, daughter of Khorbehro, who was present in the house. She also received the injuries. The injury report of Khorbehra is Ex.-P/9 and according to that report 5 abrasions were received by Khorbehra. Narayan received jne lacepated wound over teft parietal region and bruise over left .1. lumber region and left hand. Teras Bai also received one abrasion and there was swelling on the wrist. Report is EX.-P/IO. All these injuries have been proved by PW-4 br. Tamrakar who examined the injuries of Khorbehra, Narayan and Teras Bai. In the same incident these 3 witnesses received injuries and all of them have stated that occused Bhikam assauited with crou/bar (Sabbal), Jeevan assaulted iwith rammer and Surja Bai assaulted with .stone. Their evidence also corroborated bythe evidence of PW-1 Kamla Bai, Kotwarin, who has stated that after coming to know from Netram, she went to the house of Indravati where she saw that Indravati was lying on a cot. On enquiry, she disclosed that the accused persoris ho.ve infiicted injuries. Narayan w/as also lying on the cot in injuredcondition. Khorbehra after receiving the injuries, left for the house of Manglu. Kamla Bai lodged the report Ex.-P/6 in the police station. 8. Learned counsel for the accused/appellants argued that the evidence of these witnesses is omnibus and ther-e is no evidence that which injury was inflicted by which accused and to which person. 9<-'3ut, we do not find any substance in this argument. It has come in the evidence/bf these witnesses that the accused persons, after the ^ / " . quar-rel with Khorbehra ^ Narayan, entered the house of Khor-behra. Accused Bhikam picked up the crowbar (Sabbal), Jeevan picked up the rnmmer and Surja Bai was having stone and they attacked. It is evident 'y\froin.the slte plan Ex.-P/17 that the incident took place o-t point 4(A) in the hous^ of Khorbehra. In^the said incident injur-ies sustained by 1 HK ,*,**.-***»• 7 deceased Indravati, Khorbehra, Teras Bai and Narayan are proved by PW-4 &r. Tamrakar who examined the injuries of these persons. In the cross-examination of these witnesses the defence counsel has not been able to bring out any circumstance which makes the evidence of these •» witnesses untrustworthy or unreliable. 10. Learned counsel for the accused/appellants further nrgued that no independent witness has been examined by the prosecution. Leamed counsei for the accused/appellants placed reliance on a decision of the Hon'ble Apex Court in the matter of Hem Rey and others V. Stct®of Haryana reported in 2005 AIR SCW 1885. 11. It is true that no independent witness has been exomined and the injured witnesses are family members but their evidence cannot be disbetieved' only on this ground. The Court is required to scrutinize their evidence with care and precaution, as each of the injured witnesses has categorically proved that the accused persons were author of the injur-ies and their evidence stands corroborated by the medicol evidence, Moreover, PW-1 Kamla Bai has also stated that on -eoming to know, when she went to the house of Khorbehra,she saw that Indravati was lyin9 in injur-ed condition in her house and on enquiry, she ^ / ' ' , made oral dying declaratiq^before her that the accused persons have ', inflicted the injuries. Ther-efore, we do not find any illegality or- infirmity in the finding ofthe trial Court regarding involvement ofthe accys^d persons in the crime in question. The judgment cited by |:1earned ^ounsel for the accused/appellants is of no hetp to the o 8 accused/appellants as the same is distinguishable on facts. In the case of Hem R<y and others (Supra), the evidence of eyewitnesses was shaky that is why the Hon'bte Apex Court held that the corroboration of the testimony of the retated u/itnesses P.Ws. 4 and 5 by a known independent eye-witness could have strengthened the prosecution case, especially when the incident took place in n public piace.' It has been observed that: "Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. This Court pointed out in Takhaji Hir<yi V. Thakore Kubersing Chamansing and others t(2001) 6 "SCC 145]:-..........................if already overwhelming evidence is ovailable and examination of other witnesses wou!d only be a repetition or duplication of the evidence already adduced, non- exomination of such other witnesses may not be material. In such a case, the Court ought to scrutinize the u/orth ofthe evidence adduced. As has been mentioned above, in the present case, all the witnesses are injured witnesses and thejr evidence have been proved by PW-4 &r. Tamrakar. Moreover, the incident took place in the house of '">,. ' • • Khorbehra. The evidence of these witnesses further corrbborated by the oral dying declaraft&n made by Indravati before PW-1 Kamla bai, who is an independent witness and who saw the injured persons in their house and thath.as been proved by PW-1.- '^-•^ ^' .Is;,.i...ti n... (t «(K'G 'x 12.Learned counsel for the accused/appeilants further placed reliance on the judgment of the Hon'ble Apex Court in the matter of SHIVAPPA BUDDAPPA KOLKAR ALIAS BU&DAPPAGOL VERSUS STATE OF KARNATAKA AND OTHERS reported in 2005 SCC (Cri) 93 and argued thnt offence against accused Bhikam and Jeevan does not trovel beyond Section 325 of the I.P.C. and offence against accused Smt. Surja Bai does not travel beyond Section 323 ofthe I.P.C.. There is no evidence that w/ho was the author of head injury of Indravati. There is no evidence that the accused per-sons assaulted the deceased with the intention to cause her death. The quarrel ensued on the spur of moment, without any pre-plan. 13.0n the other hand, learned Additiona! Public Prosecutor supported the prosecution case. 14.In order to appreciflte the ar9ument advanced by learned counsei for the accused/appeilants, and also in order to establish the case of culpable homicide amounting to murder, it is necessary to establish all the ingredients of Section 300 of the I.P.C. Clause 3 of Section 300 of the I.P.C. envisages that there must be an intention of causingsuch bodily iiyury to any person and the bodily injury intended to be inflicted is sufficient in't+e ordinary course of nature to cause death. If we look into the evidence adduced by the prosecution, it is evident from the evidence of the prosecution witnesses that PW-3 Khorbehra ,was going to the agrjcultural field, he also called PW-8 Narayan to accompdny him, when Narayan was passing through the street, accused -t. 10 Jeevan asked Narayan as to why he is passing through the street, w/hether the street is of his father and in that process quarrel ensued. Narayan went to his house. Accused Bhikam, Jeevan and Smt. Surja Bai entered the house of Khorbehra Accused Bhikam picked up cr-owbar, •» w/hich was lying in the house ofthe deceased, accused Jeevan picked up ramrner uvhich ii/as atso lying in t'he house of the deceased ond they assaulted the injured persons all of a sudden. Therefore, from the above evidence, it is established that the quarrel ensued ail of a sudden, when Naroyan was passing through the street, as there was already a dispute regarding the use of street between the parties and in that process, withoirf any pre-plan or pre-meditation, accused Bhikam picked up crowbar, accused Jeevan picked up the rammer and accused Smt. Surja Bai picked up a stong and assaulted in a sudden quarrel, in a heat of passion. Therefore, intention to cause the death of Indravati by the accused persons has not been established by the prosecution evidence. The case-'rs squarely covered under- Exception IV of Section 300 of the I.P.C. because the manner in which accused Bhikam assaulted with crowbar, accused Jeevan assaulted with rammer, they had knowledg&.that by attacking with crowbar and rammer on the head of the deceased, they are likely'to cnuse the deofh of the deceased. Therefor-e, offence under Section 304 II read with Section 34 of the I.P.C. is macl,e out agamst accused/appellants Bhikam and Jeevan. 15. Now corning to the question as to what offence has been committed by : accused.Sur'Ja Bai, from the evidence it is established that 2 parallel 1[" 'l^tc? i} B 1 lacerated wounds were found on the left parietat area of the deceased and the doctor has stated that these injuries con be caused by any of the weapon. So fw as accused Surja Bai is concerned, the alte9ation against her is that she attacked with a stone. As has been mentioned above, injuries found on the parietal region of the deceased was, in cii probability, caused either by rammer or crowbar used by accused Jeevan and Bhikam iwhereas, only stone was used by Surja Bai. Therefore, 2 fatal injuries found on the parietal region of the deceased cannot be attributed to accused Surja Bai. She has been convicted with the aid of Section 34 of the I.P.C.. The Hon'ble Apex Court in the matter of 6irija Sh&nkar Versus State of U.P. reported in 2004 AIR SCW 810 held that:- "The distinct.ive feature of the Section is the element of porticipation in action. The liability of one person for an offence committed by another in the course of criminat act perpetrated by several persons arises under 5.34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, ,- tfrerefore, such intention can only be inferred from the circumstanc^s dppearing from the proved facts of the case an<i -fhe prove.d circumstances. In order to bring home the chnrge of comm^l intention, the prosecution •has to establish by evidence, whether direct or ~ ciRcumstantial/that there was plan or meeting of mind of all the accused.persons to commit the offence for which ^ , .'they.ciTe.chargectwith tbe aid of 5.34, be it pre-arr-anged .-r-^ or- on the'.spur' of mpment; but it must necessarily be ,, 12 before the commission of the crime. The true concept of Section 34 is that iftwo or more persons intentionally do an act jointly, the position in iau/ is just the same as if each of them has (jone it individually by himself. The existence of a common intention amongst theparticiponts in a cr-ime is the essential element for appiicntion of this Section. It is not necessary that the acts of the several persons charged w/ith commission of an offence jointly must be the same or identical!y similar'. The acts may be different in character, but must have been actuated by one ond the same common intention in order to attract the provision. Applying the above principle, if we look into the evidence adduced by the prosecution, it is difficult- to arrive at n conciusion that all the three accused persons were having common intention or even common know!ed9e t'o cause the death of Indravati. The quarrel ensued between the parties on a petty matter on use of street by Narayan and in that process occused Bhikam picked up crowbar, accused Jeevan picked up rammer from the house of injured persons, they were quarreiling with Narayan and Khorbehra Indravati, a!l of a sudden, efime and started intervening. Accused Bhikam and Jeevnn attacked her also. Ther'efore, it cannot be held that Surja Bai was sharing •^ / ' . intentionwith accused Bhil<%n dnd Jeevan to inftict injuries by crowbar •and rommer to cause her- death. As far as Surja Bai is concerned, the , prosecution has npt been able to establish the ingredient o-f Section 34 of the.I.-P.C.'agQinst her', therefore, provisions of Section 34 of the T.P.C. are not attracted as against Surja Bai. 13 In view of the above, it can safely be held that accused Surja Bai has been wrongly convicted with the aid of Section 34 of the I.P.C. for committing the death of Indravati. 3WWW :] 16.As far as conviction under Section 323 read with Section 34 of the I.P.C. is concerned, as per the injuries received by all the injured persons and the manner in (i/hich they used weapon, the trial Court has rightly convicted each of the accused persons under Section 323 reod uvith Section 34 of the I.P.C,. To that extent, we do not find any i!lega!ity ancf infirmity in the judgment of the trial Court. 17.In the resuit, finding of.the triai Court convicting accused Bhiknm and Jeevan under 5ee-tion';302..read with Section 34 of the I.P.C. cannot be sustained, therefore, their conviction and sentence awarded under Section 302 read with Section 34 ofthe I.P.C. are set aside. instead thereof, they are eonvicted under Section 304-11 read with Section 34 of the I.P.C. and each of the accused is sentenced to undergo R.I. for 10 years under that section. Accused Surja Bai is ocquitted of the charge under Section 302. read with Section 34 of the I.P.C.. The conviction and sentence awarded ogainst her under that section cre set aside. /i-lowever, the conviction and sentence under Section 323 read with Section 34 of th&*~I.P.C. against all the three accused persons namely Bhikam bas, Jeevan and Smt. Surjn Bai are maintained. Smt. Surja Bai has .already served out the sentence as she was under ^ detefition for about-more than 2 years. Accused Bhikam and Jeevan ar-e also in .detention since 1994, and they have also served out the &. ® 14 •• sentence, therefore, they be set at liberty forthwith, if not required in any other case. Accused Surja Bai is already on bail, therefore, her bail bonds are concelled. Sd/- L.C.BHADOO Judge Sd/- DHIRENDRA MISHRA Judge Sarve III 'w