HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon’ble Shri Sunil Kumar Sinha & Hon’ble Shri Radhe Shyam Sharma, JJ. Criminal Appeal No. 1119/1 995 G : ‘ (Criminal Aggeal under Section 374(2) Cr.P.C.) Present: Shri Arun Kochar with Shri Ravi Kumar Bhagat. for the appellants. Shri Ajay Dwivedi, Dy. Govt. Advocate for the State. ORAL JUDGMENT (03.11.2011) The following judgment of the Court was passed by Sunil Kumar Sinha, J :This appeal is directed against the judgment dated 20'" of July 1995 passed in Sessions Trial No.27/91 by the Second Additional Sessions Judge, Bilaspur. By the impugned judgment, the appellants have been e!- convicted under Section 302/34 IPC (in two counts) and sentenced to undergo imprisonment for life. 2; The facts, briefly stated, are as under:- VSix accused persons were tried for commission of offence punishable under Sections 302/149 & 302/149 IPC. Case of the j prosecution is that on 12.1 1 .90 at about 2.00 p.m. Horilal and Aghorilal (two l APPELLANTS 1. Babmal Son of Gangarahu Yadav, aged about 24 years. 2. Gangaram Son ‘of Jhulan Yadav, aged about 80 years. 3. Kaushalya Bai D/o. Gangaram, e Aged about 20 years ’ All residents of village Bokrail V ‘ Malkharande, District Bilaspur (MR) (Now State of Chhattisgarh) Vs. Respondent State of Madhya Pradesh t a (Now State of Chhattisgarh) @ deceased persons) were transporting their paddy crops in a buffalo cart. They were accompanied by Govind Lal (PW-1). As soon as they reached near banyan tree, six accused persons came on their way and assaulted them by tangias and iathis. Specific allegations are that Babuiaf (A-1) and Gangaram (A-2) were armed with tangia and they actively participated in assaulting the deceased persons. Allegation about the remaining accused persons is that they also reached there and assaulted the deceased persons by lathis. The case of the prosecution was based on eyewitnesses’ account @F Govind Lal (PW-1), Bhagulal (MN-2) and Lattiram (PW-13). Testimony of Bhagulal (PW-2) was disbelieved by the Session Judge vide para 11 of the judgment. The leamed Sessions Judge relied on the testimony of Govind Lal (PW—1) and Lattiram (PW-13) and held that it was proved beyond all reasonable doubts that the above three accused/ .F« were liable for punishment under Section 302/34 of IPC (in two counts). The learned Session Judge, therefore, convicted the above three appellants as aforementioned. However, the remaining three accused persons namely Mankuwar (A-3), Kala Bai (A-5) and Sat Bai (A-6) were acquitted of the charges framed against them. appellants participated in commission of the aforesaid crime, therefore, they 5‘ 8 l , J 3. I Learned counsel appearing on behalf of the appellants argued that Govindi Lal (PW-1) and Lattiram (PW-1 3) are not reliable witnesses; name of Kaushalya Bai (appellant No.3) is not mentioned in First information Report; therefore, conviction of the appellants based on the above evidence ‘;r~\ cannot be sustained. 4. On the other hand learned counsel appearing on behalf of the State opposed these arguments and supported the iudgment passed by the sessions Court. '5. We have heard learned counsel for the parties at lengthcand have also perused the records of the sessions case. 6. Govind Lal (PW-1) deposed that on the fateful day, he was accompanying his father Horial and uncle Aghorilal when, they were transporting their paddy crops on buffalo cart. Horilal was sitting on the cart and Aghorilal was going on foot in front of the cart. As soon as they reached near banyan tree, accused Gangaram (A-2) and Bubulal (A-1) came there. They were armed with tangias. Babulal assaulted his uncle Aghorilal by tangia. Gangaram also, assaulted him with tangia. Thereafter, other accused persons came there and they assaulted the deceased persons by lathis. Baburam and Gangaram also assaulted his father by tanigas.‘ The deceased persons received multiple injuries. 7. Lattiram (PW—13) in an independentvwitness. He corroborated the evidence of Govind Lal (PW-1). According to him, the deceased persons were assaulted by appellants 1 & 2 by lathi and tangia. ’ He did not take specific name of appellant No.3, however he simply added that a girl was also accompanying appellants 1 & 2 and she was carrying a thin stick with her. 8. ‘The learned Sessions Judge has acquitted three accused persons on the ground that their names were not mentioned in the FIR (Ex-Pl24) which was lodged by Maniram Kotwar (PW-8), and Maniram was duly briefed by the wife of deceased Aghorilal. lt was held that if the above accused u c i" persons would have participated in the crime, their names would have been mentioned by Maniram in the FIR (Ex-P/24). A perusai of the FIR would show that name of appellant Koushaiya Bat (A-4) is also not mentioned in it. Therefore, her presence at the place of occurrence is doubtful; £Moreover, Lattiram (PW-13) has only deposed that a girl, who later on reached to the place of occurrence, was having a thin stick with her and she also assaulted Horilal. 9. The learned Sessions Judge has found that it was not a case of formatidnuof an unlawful assembly and on this account, three accused r ‘ persons have been acquitted vide para 49 of thejudgment. é g l 10. On a close scrutiny of the entire evidence ayailable on record, we find that the presence and active participation of appellants 1 8} 2 was proved by the prosecution on the evidence of two eyewitnesses namely Govind Lal ?PW-1) and' Lattiram (PW-13). However, presence and participation of Kaushalya Bai (appellant No.3 ) in the incident is doubtful. We are of the view that Kaushalya Bai (appellant No.3), in the above facts and circumstances, is entitled to benent or doubt. E 11. For the foregoing reasons, the appeal is partly allowed. Conviction and sentence awarded to Babulal (appellant No.1) and Gaigaram (appellant No.2) are maintained. Conviction and sentence awarded to Kaushalya Bai (appellant No.3) under Section 302/34 of IPC are set aside. She is acquitted of the charges framed against her. She is presently on bail. Her bail bonds are cancelled and surety stands discharged. ' /_ ”sail, x ” Bini 77 - Sd/- ggg r i ‘(Sunil Kumar Sinha l Judge R.S' Sharma Judge //