^ •^^^y ^ ^> ^(•%< l^'' ..y ^.^•: •9S:S' '-•.^•^. CF0000063556 Oivision ttenci'i i^ inii,,^.; IN_TH^,H.rCTi_CODRT OF 3VQICSSVR.E AT JABALPTJR, MP. Cflminal Appeal No«i~3 -3 /2000* APPELLANT. (IN JAIIi). : Blret^ra Haslb S/o* George MasJLh, age 33 years, oecupat.ton- Servlca, ( SECL ) R/o« B.i.shrampur PS- Bisbrainpur Distt-Sarguja, HP^i -V, RESPOEIDENT* ersus- i Tfae State/Sf M.P* tbrough PS- iTai.nagar Distr.lct- Sarguja, MP. CR3MXNAL APPEAL CT/S. 374(2) OF THE GODB OF CRIMINAL PROCED-URE. ~ COHVICTION l.U/S.l47 IPG 2.0/s.302/149 IPC SENTENCE </' 1 year Rl Life lapri.sonment and fj.ne of '-. In defaalt of yment 5 moatbs RI ma-e* Seateaees to run coacurreatly and seatefi&e alr undergoae to be a<ajusted* %1 Ws/1:. Ki lUi ^T^r^-^-irfft^^+^ - ..-_.:-.~..S^S,S3ERSaaSS^KE^i^. EjeHHATTiaSABBLATJBILASEHS Gr. Appeal No.l58S/2000 Suresh Pandey Vs. State ofMadliya Pradesh (now Chhattlsgarh) Or.ARDed No. 1309/2000 Buicndra Masih Vs. Siate of Madhya Pradesh (now Chhattisgarh) Cr-Appeal No. 1326/2000 Rajesh & anofher Vy. State of Madhya Pradesh (now Chliattisgarh) Cr. AppeaINo. 1402/2000 Siraiuddin Vs. State ofMadhya Pradesh (now Chhattisgarh) CORAM: - HON'BLB SHRI FAKHRUDDIN, & HON'BLE 8HRI DILIP RA08AHEB DBSHMUKH, J.J. PRESEN'I'; - , . Shri Surencira Smgh, leaiTied Senior Advocate with Shri Neeraj Mehta, lcarned counsel for thc accused-appeUant. Shri U.N.S.Deo, Govt. Advocate/Additiona] PubUc Pi-osecutor • with Sliri M.P.S.BIifitia, l';)i](-l I.awver for the State. J UD GMBJtT (Deliveird on 21 -11-2005) ;.Per Dillp Raosaheb Deshmukh, J. ^l, T'his Judginent shall dispose Cr. Appeal No. 1585/2000 filcd by tlie appellant Suresh Paade^, \\,. Cr. Appeal No. 1309/2000 filed by the appcUaat Birendra Masih, Cr. Appeal No. 1326/2000 filed by thc appeUants Rajesh & otfaers and Cr. Appeal No. 1402/2000 filed by thc appellant Sirajuddm, 2, The aboveaieBUoned appeUaats being aggrieved by the judgment dated 08-05-2000 deUvered in Sessions Case No. 470/1993 by Shri C.L.S.Tekam, Additional Scssions Judge, Surajpur whereby the appellant Chliotu aUasKrishiia was convicted under Section-147 & 302 of the I.P.C. and sentenced to rigorous imprisonment for 1 year under Section-147 ofthe I.P.C. and to unprisonment for life & fine of Rs.1,000/- under Section-302 of the I.P.C. aad in default to uudergo additional rigorous unprisoamentwftn;! 5 months. The appeUants Rajesh, Suresh, Birendra Ma^Ui and Sirajuddui were also convicted undeT Scction-147 of ftie I.P.C. aad Secti.on-302 read with Section-149 of the I.P.C. and were senteuced to i-igorous imprisoament for 1 year under Section-147 of the f.P.C. and to Ufe imprisonment and fine of Rs. l,000/ each under Scction-302 read with Section-149 of the l,P,C. aiid in default of payment of fine 'tp undergo additional rigorous imprisoiunent for 5 mondis. ^.. 3. Brieny stated Qie prosecution story is fhat tlie deceased Lalcliaiid ownect the house and badf iu Village- Mahadev para, Keshav Nagai', Vishra.mpur, District- Sai-guja whicti had a fencing tied on wooden. polcs. On ^i^ 18-03-1992 at about II P.M., the appellants were ^n' . r- •''/ iiprootiag tlie woodeu poles troia the badi of Lalchaad for bui-ning in the Holi fire, The appcllant Chhotu had an u'ou roi.1, llti-' appcUaiit Suresh was canymga Idiife and ttie remainmg appeUants were carr>ring lathies. €IW^. Sabmath Ram PW-l younger brofher of Lalchand prevented tlie appeUants Erom uprooting thc wooden poles, The appellant Chhotu @ Krishna caught hold of tlie neck of Sabiaath Ram PW-l who shouted. Hearing tlie shouts Bajari Bai FW-3 along with her husbaad Lalchand came to the place of occurreace. When Lalchand attempted to Uberate Sabiaafh Ram PW-l, ttie appeUant Bircndra Masih and Rajesh caught hold of Lalchand. Birendra pushed Bajari Bai PW-3 whp fell down. On fhis, the appcUaat Chhotu @ Krishaa assaulted Lalchand fix>in behind on the head by an iron anglc rod. AH the appeUants ran awaythereafter., ; '^is-.. /,^s^ f^/'ri? ^ li.S-1 !,>». ^ -y ^ 4, Sabuiafh PW-l and Bajari Bai PW-3 brought Lalchand home. Kaiaeel Beck PW-2 who saw titie occiuTencc irifonaed fhe poUce which arrived at the place of occurrence. Dehati Nalishi Ex. P-1 was lodged by Sabiaath. Rafa PW-l. An offence uuder Section-147, 149 and 307 of ftie I.P.C. was registered at Police Station-Jay Nagar, vide Ex,P-l(A). Sabinath Ram PW-l got Lalchand adiuitted in the Regional Hospital, Vishra.mpur. Dr, D.K.Patra who examined Lalchaad founcl an mrispd woiinci over scalp size 3 W^ y. W. There was no bleediag from fhe nose and ears. Lalchand was vomitting. Lalchand succumbed to the injury in early hoiu-s of 19-03-1992. Sub laspector Dhruv Das Vaishnav PW-9 prepared iaquest vide Ex.P- 8 and sent t.he dead body of Lalchaad for postm.ortein examinatioa. Dr. Kamlesh Kumar Tamrakar PW-7 conducted the post-naortem examination on Lalchand found an abrasion over right ear k>bulcs size 1 IA x '4 cm reddish in colour and one coatusion over rigtit tempero parietal region with stitched iajur}' transversely placed sizc 17 x 10 x 5 cm. On removiag stitclies iie fouiid ftiat thc iiijur;'' which was & lacccated 5. 6. "'^lkis?^ wound was scalp deep. There was a Imear fi-acture of right tempero parietal bone transversely placed 10 cm m lengfh. Anterior to this fi-acture another UneaT fcacture of similar bone was present, size 4 cm ia tength. Extra dural haematoma was present iinderiyiag the injuxy. Dr. Tamrakar opined that the abovementioned fractui-e was caused by hard aad blunt object and was daagerous to Ufe. In his opmion cause ofdeatti was coma due to head injuiy. On 21-03- 1992, one iron i-od size 17 Ya "in lengfh and 4 Inches in circuinference was seized fi~om the appeUant Chhotu @ Knshna vide Ex. P-5. Spot map was prepared by Pa&yari Mohd. Isracl PW-8 vide Ex. P-14 which showed that fhe place of occurrencc was fhe badi of Kameel Beck PW-2. After completion of investigation, fhe appe^Uaiits were prosecuted for offence under Section- 147,? 302 and also under Section-302 read with Section-149 ofthe I.P.C. ! The appeUants abjured the giult, pleaded umoccnce and led no evidence in defence. The prosecution exammed EIS many as II •rt'itnesses. The trial Judge relying upon fhe evidence led by the prosecutidx convicted and sentenced the appeUaats as shown above iii pai-a-1. Shri' Siirendra Smgh leamed senior counsel for fhe appeUaiits has argued fhat tbe evidence led by the prosecution fails to establish fhe charge under Section- 1-17 tuul Sectiu.ir 302 rcad with Section-149 of the I.P.C. against thc a])pcllaiits Suresh, Birendra, Rajesb. and Su-ajuddin siiK'f thcre was no evidence on record to estabUsh common intention to cause fhe death of I^dchailtl for diesc appelkuits who had no motive tlierefor. The evidence of Sabinath Ram PW-1 that Lalchand was held by Birendra and Rajesh was nottung but iniprovement ia the prosccution case and could not be relied on siace it did not fiiid place ia the P.I.R. Ex.P-1 lodged by Sabiaath Ram FW-1, Vt:wiaa next contended that Kameel Beck PW-2 did aot see aay u'ori angle rod in thc hand of appeUant Chliotu @ Krishna. PhaUanus Miaj PW-5, an eye witness did not depose tliat the appeUant Ch.hotu @ Krishna had assaulted Lalchand by a rod. Amrit PW-6 did not support the prosecxition stoiy and was declared IiiostUe. It was argued fhat the testimony ofPhalianus Miaj PW- 5 showcd fhat fhcre was a scuflElcwhiGfa:tevealcd"tttJat the incident h.ad occurred upon a sudden fight. So far as the assault made by the appellant Chhotttj® Krishna by an Iron angle rod on Lalchand ^as concemed it was contended fhat the appeUant Chhcjtu was allcgcd to have caused oiily a siagle injzuy on:[the hcad of Lalchand. Rcliance was placed ia the cass'of Stccte of Orissa Vs. Bhaylicw. Bartk rcDorted ia A.I.EL-1987-8c-l265, in the case of TnaaetiiMiVs. Stutc of Tumlt Nttdu reported in A.I.R.-2005-8C- 1143t, iu the case of Baadlrcun Vs. State of ^ty*. repdrted in J.L.J.-2005 Volume-I-263 and it was argued that the ofifciice if aay coixuiutted bY^the ai^ieIIsifif"ICIi.Kotu1 @ ' KHsIma''dMI'iWt*< awcil.°lbte$iptdl' Sectioa-304 Part-Il of theI.P.C. Itwa^fllsoeoiiten^ls- tliat conviction of the appeUants Suresh, Bu-endra, Rajcsh and Sirajiiddin undcr Sectibn-302 read ^'cith Section-149 of the I.P.C. and also under Section-147 of Ihf [,P.C. wiis (•diilct iiot !•)<• yiistauu-d. Rcliancc was placed m tlic case ofOhcircim Pal & others Vs. State ofH'aryana.rc]\vncd in A.r.R.-l978-8C-t492, Puinan V3. State of Rdisthcm. reported in A.I.R.-1976-8C-912, Kcmuwrlal S» others Vs. Steste of aSadhiKi Prcutesh repdrtcd in CT.L.J.-2003-62, Rcanbttaa Sinqh emO. 11Jli ^S°!li'^ •l!^!ffl'';';'!;:';:'lfi';":^'? :"i:- others Vs. Steite pfBtharreported in A.I.R.-1989-8C- 1893 and Sherilch JVnbab Shaikh Babu SSustdyw& and othcrs Vs. State of Mcihctreishtra reportecl m A.I.R.-1993-8C-169. On the other hand, Shri V.N.S.Deo, leamed Govt, Advocate placed reliajice in. the case of U'mcsh Siiwh Ss emother Va. State of 'SlhQt__ieportad iii 8CC-2000 (6)-89, jRdmeshiuar Dcmal & others Vs. State of Madhua Pradesh i-cportt'd in A.I.R.-2002-SC-7S4 and Sh*o Meihadeo Singh Vs. Stdte of Bihcir reported ia l970-8CC(3)-46 and contended that in the facts and circumstaaces of the case smce tlie appeUaats had gone to fhe place of occurreiice to setUe fhe score that fhe deceased upon a previous encuiQ' it was not necessary for the prosecution to prove spcct&c overt acts on part of aU the ^cftembei's.pf uiilawful^sge@tily. ReUaace rwas also placed Muashi Prasctd Vs. Stecte of Bihctr reported m SCC (Crimlnal)-2Q02-178 and Rcwi Kwnar Vs. State of Puniab neported in Crimiaal Law Jonraal-SC- 2005-1742 whUe arguing in support of the judgment of tSw trial Court. Lcaraed counsel for the appellaat also placed reliauce in the case of K. Kamtikrlshnan. [rninlthan Vs. State ofKcrcitoreoortedm A.I.R.-1.999- SC-14a8,Atopfla Tham&an JVamMar 7s. Sterte of Kerala reported in A.I.R.-1997-8C-687,Snitta Prascid ® Baba Vs. State of Uttar Pradesh rcportcd in A.I.R.-1994-8C-1643 and Guyar Hussaln Vs. State of U.P. reported in A.I.R.-1992-SC-2037 while argtun^ that the offence if any commltted by fhe appeUant Chhotu @ Krisbna did not travel beyond Section-304 Part-IIoftl-ieI.P.C. s',s 7, Wfe havc hcai-cl rival contentions and have also peruscd tlie record. Sabmat.ti Ram PW-l is the pcreon who had first reached the place of occurrence aud saw that the appellaiits were uprooting the wooden poles fixim their badi. His testimony that thc appeUaat Chhotu @ Krishna caught hold of his neck whcreupon toyiag to Uberate himself he shouted, fails tb inspire cort&lence since fhis does not find place ia fhe F.I.R. Ex.P-1 lodged by him. It also does not find placc in his statement i-ecorded under Section-16:l,of thScjRr,,{><:;, Ex.D-l. No such statement was made by Kameel Beck PW-2, PhaUanus Minj PW-5 aad Aiarit PW-6 who were exammed by the prosecution as cye-witnesses. Bajari Bai PW-3, wife of Lalchand has stated that the appeUant Chbotu had pressed ffcie throat of Sabinath Raui PW-1 but lias admitted ta cross-examiaation that iri her statement recorded under Sectioii-161 of fhe Ci-.P.C,, she did not state fhe abovementioned fact. No injury whatsoever was found on Sabinath Ram PW-1. 8. So far as the testtmonv of Sabiaath Rani PW-1 that Birendra i-iuslied Bajari Bai PW-3 is concei-ned, it does iiot fiud rorrol.ioraLion from Bajiia'i Bai PW-3. No iujury whatsoevcr was foiuid on Bajari Bai. Phalianus Minj PW-5 has stated fhat on reachiag the place of occunrencc he saw that a scufile was going on but did not specifically attribute auy overt actto aay appeBant. Aiurit PW-6 has aisp iiot supported the pi0^<:;u^oii; vefsiou ;:uiil was declai-ed hosUle. In view of tbe oiAission iri the F.I.R. lodged by Sabiaath PW-1 and also in thf statemcnt ofSabinath Ram PW-l and Bajari BEII PW-3 recorded under Section-161 of fhe Cr.P.C., the overt act,s attributed to fhe appeUants Suresh, Birendra, Rajesh and Sirajuddm for the first time in evidence before fhc tiial Court are nothmg but improvement in fhe prosecution stoiy and caimot be reUed on. If the appeUants Siiresh, Birendra, Rajcsh \ !a: yffi and Sirajuddin had assaulted Lalchand, Sabmath Ram PW-1 and Bajai-i Bai PW-3 by fists or kfcks, at feast some such injuries would have been °:fi3und'ioii"itficir person, Omissions ia tlie P.I.R, lodged by Sabitiath Ram PW-l aiid the statemeuts recorded under Section- 161 of the Cr.P.C, of Sabinath Ram PW-1, Ex.D-1, Bajari Bai PW-3, Ex.D-3 clcarly rendcrs their testiiapny that fhe appeUants Suresh, Bircadia.Rajesh 'aad Strajuddin had comiaitted any overt act durin^g ^thc assault made by the appeUant Chhota-i @ JKrisbna :ou LaJchand by an iron augk rod, iinworthy ofcredlt. 9. Dr. D.K. Patra who had examined Lalchand oaitfQ-OS- 1992 had found only a smgle incised wound ovcr scalp of Lalchaud was not exaiuined by the prosecution. The mjury' report of Dr. D.K. Patra was pinvcd by Dr. Rdmesh Pataaik PW-8. Thc iajiuy FeportrssBx.iB-ilS shbws tliat besides aa incised wound ovcr scalp size 3 W x IA", there was no o&er injury oa ttie per^on of Lalchand. It aJso shows th.at there was no bl^ediag froim iiose and eare. Dr, Kamlesh Kumar Taiarakar PW- 7 who conducted the. posttaortem on Lalchand found that the injuiy sustauied by Lalcliand was a lacersrt^d wound and not aii iiicised wouud on the right teiapero parietal region. No bleeding was prescnt "firom the vvound which reflects t.I-ie mfld foree wifh which the injuiy was caused. 10. Havmg considered the evidence led by (he proseculion in its entirety and also the rival conteiitions, we we of ttui: considcrcd opinion that the evideace of §|)iu:t^th RMU PW-I, Bajai-i Bai PW-3, Dr. Ramcsb Patoaaik PW-8 and Dr. Kainlesh Kumar Tamrakar PW-7 oaty established that the appeUant Chhotu @ Krishiia had dcalt a siagle blow by ao iron angle rodontfaesfcuUiOf Lafchand. No other injury on Lafchaad was caused eithor by Chhohi or by tiic other ;appeffiSS"'s»gat : Birendra, Rajesh and Sirajuddm.. The testixnonyl|of Sabinath Rain PW-1 aad Bajari Bai PW-3 attribut|ag overt acts to these co-appeUants fails to insgrc confidence and is wholly uaworthy of credit ia vie^||of the omissions in the F.I.R, as also in their statemeiBt recordcd mider Section-161 of fhe Cr.P.C iTlie testimonv of Patwari Mohd, fsrael FW-8 docs not show that aiiy ^voo(lt'I1 poles had actuaUy been removed fi»m thc badi ol~ Kameel Beck PW-2 by thc appellaats, Kainecl Bcck I'W-2 has also uot stated that any poles had^been uprooted froin bis badi. No uprcoted wooden poteswei^e seized diu-ing investigation, The testimonypf Sabinath Rain PW-l also does not show that the appcllants had actually uprooted any woodca potes from the badi. Since, the root causc for the occurrence is itself shrouded in myster^', we are of the considered opinion that the evidence led by the prosecution fai}s to establish the complicity of the appcU^nlEgs^'ffiS^fe.!' Birendra, Rajesh and Su-ajuddia in ftic assault by Chliotu @ Krislina on Lalchand. The evidence le^ by the prosecution does not prove that the appcUarits Szu-esh, Birendra, Rajesh and Sirajuddia had formed an unlawful asseinbly with Chhotu and stlared common intention with Chhotu ia the assault on Lalchand. Tlicre is absolutely nothiag on record to substantiate the modve of the appcUants to cause the death of Lalchand. Considei-ing the fa.et fhat after the single blow by an iron angle rod dealt by thc appeUaat Chhbtu on [-.-ilchaiid, no otlier injuxy was caused on Lalchand eithei by the Chhohi or by any of (tie appeUaiits, vve are of the considercd opiiiion that fhe pi-osecution has fafled to prove that the appeUants; Ii^dl formed an unlawful assembly with fhe object of eausing 10 i;e!;' the deafh of Lalchand and in furtherance of thisi commoa object of die assembly, the appellaats Suiesh, Bu-eiidi-a, Rajesh and Sirajuddin had done any overt; act to accomplish the comiaon object of the asscmb]y.| We are, therefdre, of the considered opiuioa that the ofience under Section-147 and Section-302 read with Section-149 of the I.P.C. has not been established by ftie prosecution agauist the appeUants Suresh, BirenAra, Rajesh and Su'ajuddm. ,, i, ,, II. So far as the appeUajit Chhotu @ Krishna is conceraed all that cmei-ges from The evidence of Sabinafh. Ram PW-1 & Bajari Bai PW-3 is that he had mflicted a single blow by aa iron angle rod on the Lalchand without inuch^tbrcc. The medical evidence does not shcw that tlterf was bleeduig from the wound. The report of Dr. D.K.Patra Ex. P-15 sliows tbat La-lchand had no blrcdiAg from tlic c,"u~s and nose. WhUe Dr. Patra has aientidned diat tfie iiijuiy was an incised wound, Dr. Raiiiesh Pataaik PW-8 has ia his report vide Ex.P-11 mentioned that it was a lacerated vvound. It appears that the blow was not dealt wifti sufEcient force on the hcad of Lalcband by the appeUant Chhotu @ Krishna. The fact that no fi.irtber mjuty was causcd by the appfllant Chhoti) also supporfs the view' fKat the: iiitentioa to cause death of Lalchaad was lacldng. In the case of Thcwsaetlya Vs. Stecte of Temdl JVadu reported in A.I.R.-200S-8C-1142, the Apex Court has laid ctown tlie criterion for the appUcabUity of Sccdon-300 ofI.P.C. The weapon used, size ofweapon, ; ^ place 6f assault, lacts leading to assault, part ofbody y wbere'mjury is inflicted arc relevant factors to be considercd. Whei-e the fatal blow was given to the dcccased with a smaU stick in a dualy lit placc, it vvas 11 held that the case was covered bv Section-304 Part-I of the I.P.C. and convictiori vvas altered from Scctiori-302 t6 Secdon-304 Part-I of tfae I.P.C. Applying the principles laid down by the Apex Court to the facts of :tiie prescnt case,! we fii!d:!;,'that ^thc;ifiQc;si;y;^gce;j!;(@^ place af about. 11 P.M. As it appears from the evidence of Phalianus' Minj PW-5 fhe possibility fhat fhere was a sciifllc betweeii Sabtnath Ram PW-1 & Lalchand and tlie appellants could not be niled out. It appears fhat duriiig tlus period, the appellaat Chbotu @ Krishna stnick witli an ii'on rod on fhe head of Lalchand pnly once. No ot.bcr injuiy vvas causcd. Considering fhe tmie ofowiiiTencc, the size ofUie weapon aad ttie force witli whidi it was used, the fact that only a siagle blow was given, \\-e are of the considere.d opinion that fhe offeace conimitted by tlie appellant Chhotu does not travel bevond Section-304 Part-II offhe I.P.C. as intention for Ciiusing Ihe death of Lalchand cannot be attributed to tlie appellant Chhotu ;§! Ki-ishna. In fhe facts and cu-ciimstances of the case at tbe most it can be said t.1iat by assaulttng Lalchand on tlie head by an iron angle i-ocl, the appeUant Chhotii had the knowledge that the injun' being caused on the vital partwas likely to.cause deatb. Thcrefore, fhe offence coiumitted by fhe appellaiil Chhotu does not. U-avel beyond Section-304 Part-IIoftheI.P.C, tn the rcsult, Cr.Appeal No. 1585/2000 filed by the appellant Siu-csh Pandey. Cr. Appeal No. 1309/2000 fi.led by the appellant Birendra Masib., Cr. Appeal No. 1326/2000 ('ilcd by tlie appeUant Rajesh and Cr. Appe&l No, 1402/2000 filed by the appcUant Su-ajuddin ai-e allowed. The conviction ofthe appeUants Suresh, Birendra, Rajesh aad Sirajuddia under Secdon-147 & Section-302 read \vith Section-149 of \ 12 v;^ 'v a ^' •;^tA&^ the I.P.C, i-uid t.he sentences imposed thereuiider are set aside, Theae abovementioned appeUants arc acqiiitted of the rharges under Section-147 and Sccliou-30^ read with Secuon-149 ol'the I.P.C. So far as the Cr. Appeal No. 1326/2000 filed by the appeUaat Chhotu @ Krishna is concemed, it is partly allowed. Tbe conviction of tlie appeUaiit Chhotu @ Krishna under Section-147 and Section-302 of the I.P.C. and tbe sentences imposcd fhereunder are sct aside. The appellant Chhotii alias Krishna is convicted under Section-304 Part-II of fhe I.P.C. and sentenced to rigorous imprisonmeut for 10 yeai-s. Tbe appeUant Chhotu is m jail from 21-03-1992 to 02-05-1992 and thereafter from 08-05-2000 to till date. Set offunder Section-428 of tbe Cr.P.C. for the period already undei^one by the appeUant in detention be given to fhe appellant Chhotu (g; Krishna, SdA Fakhruddin Judge ^l-11-2uu::5 . 2.^11-2005 Sd/- D.R.Deshmukh Judge 5(;Lti)t;h