;:.-?NS;"'' HI6H COURT OF CHHATTCSGARH AT BILASPUR WVISION BENCH Coram: Hon'ble Mr-.T.P.SHARMA & Hon'ble Mr.R.L.JHANWAR. JJ. APPELLANT CEnJail) 10/12/2003 RESPON&ENT APPELLANTS d.n Jail) RESPON&ENT Criminal Appeal No. 535/2005 Mangal Baiga, 5/o (Sanesh Singh Baiga, Age- 55 years, Occupation-Labour, R/o Village Bolda, Police Station Rengakhar, Distt. Kabirdham (C.G.) Versus State of Chhattisgarh Through Police Station Rengakhar, Distt. Kabirdham (C.6.} And Crimnd_A eal No. 1241/2003 1. MangilatsonofMangalsingh 60190, aged 27 years, LxibQyren 2. Bhaira cilias AAahadeo son of Mangal§jn9h,siged;23ye.c>rs,labourer Both resiclenti of village: Bolda, P.5. RengBkhiar;t)is-t-rict;Kabirdham.C6. Versus State of Chhattisgarh through Police Station Ren9akhar. (CRIAMNAL APPEALS UN&ER SECTtON 374(2) OF THE CO&E OF CRIAMNAL PROCE&URE, 1973) Present: M.r. J.A. Lohani, Advocate for the appellant Q.nCr. A. No. 535/2005). Ms. Sofia !<'!ian, Advocate for the appellants (In Cr. A. No. 1241/2003). Mr. rtavindra Ayrawo; P.L. for the State/respondents. u /^<-\ ^ JUD6MENT (Passed on 15Th February, 2010) The judgment of the Court was delivered by T.P.Sharnno, J.:- Criminal Appeal No. 535/2005 filed by oppellant-Mangal Baiga & Criminal Appeai No.1241/2003 filed by appellants-Man9ilal and Bhaira @ MoJiadeo have been filed against the same offence decided by different Session Trial Nos. 3/2004 & 3/2003 vide judgment dated 30/3/2005 & 13/10/2003, therefore, they are being disposed of by thio comrsior! Judgmer't. In criminal appeal No. 535/2005 appellant - Mangal Baiga has challenged the legali-ty and pr'opr'iety of judgment of conviction and order of sentence dated 30/3/2005 passed by Additional Sessions Judge (F.T.C.) Kawardha in Sessions Trial No. 3/2004 whereby leamed Additional Session Judge after holding the appel!cint guilty f'-.r the commission of culpable homicide amounting to murder of deceased Nainsingh and endangering -t-he life of Budhan Singh and Budhwaro Bai in sharing comrnon intention the appellant convicted under Section 302 read with Section 34 and under Section 336 of the Indian Penal Code and sentenced rigorous imprisonment forlife and fine of Rs. 200/- in default 3 months additional r'i9orous imprisonment and rigorous imprisonment fvr 3 months. In criminal appeal No. 1241/2003 appellants - ^vangilal and S'hc.ira @ Mahadeo have ttlso challenged the legality ond propciety of jud9ment of conviction and order of sentence dated 13/10/2003 passed by Additional Sessions ,Judge (F.T.C.) Kawardha in Sessions Trial No. 3/2003 whereby learned Additional Session Judge lafter hdldin9 the appellants guiltj^ for the commission of culpoble homicide amountin9 to mur-der- of deceased Nainsingh and endangering the life of Budhan Singh and Budhwaro Bai in sharing common intention •t+ie appellants convicted under Section 302 ond under Section 336 of the Indian Penal Code and sentenced imprisonment for life and rigorous imprisonment for 3 months. "aE^h !' -6&/ «. 3. The conviction is impugned on the ground that without dny iota of evidence court below has convicted cind sentenced the cippellant.s cforernentioned and thereby committed an iliegaljty. 4. Case of tiie prosecution, in brief, is that on the fateful day of 26/12/2000 at about 6 P.M. complainant Budhan 5ingh and Budhwaro Bai were present in their kitchen garden and they were cutl-ing the mustard crop. Appelleuits went to the kitchen garden {Badi) and after using filttiy language and they used filthy language then Budhan Singh and Budhwaro Bai entered into -the house of rtie Budhiya Bai. Att three appellants pelted stones in the house of Budhiya Bai. Liecsased Nainsingh came out from his houss and asked the appellants that why they were pelting stones then appellants pelted stones over the Nainsingh and caused injury over his head, Nainsingh fell down and died on the spot. Bartu 5ingh went to tiie Police 5tation and lodged First Information Report. 5pot map was also prepared. After summoning the witnesses inquest over the dead body of the deceased Nainsingh was prepared. Dead body was sent for cutopsy to Community Health Centre, Ka.vardha. &r. R.K. Bhuarya conducted autopsy and found following injuries:- (1) Head becomes flat ond abrasion were found over the left side of the head of 8 x 10 c.m. (2) Abrasion over the left eyebrow of 4 x 3 c.m. (3) Abras'ion over maxillary bone of 8 x 3 c.m. (4) Contusion over the left side of the face of 6 x 4 c.m. (5) Abros'ion over fo.rehead of 7 x 6 c.m. (6) Abrasion over tde ri9ht scopulai of 10 x 4 c.m. (7) Fracture of left frontal, partiot, occipital bone and muttiple fracture of mcixillar/ bone, brain was ruptured. Death was shock as a result of excessive hemorrhage. Death was homicidol in nature. Budhan Singh was also examined by t)r. K.S. Dhruve and found two injuries ove.r left eyebrow and left knee. Sealed packet of the clotlis of the deceased was seized after autopsy. Stones were seized and sent for chemical sxamination. pr^.ser'ce &f b!ood over the stones wasfound. BBs1'1 t^- li»M. v^f. 5. Statements of the witnesses were recorded under Section 161 of the Cod.si of Criminal Procedure, 1973 (in short 'Code'). After completion of invesrigal-ioh, i.-horge. sheet was filed cc.se uuas committed to the Sessions, Rajnandgaon leamed Additiono,i Sessions Judge received the case on transfer- for trial. 6. In order to prove the guilt of the accused/appellouits in Sessions Trial No. 3/2004, the prosecution examined as many as 9 witnesses while in case of Sessions Trial No. 3/2003, the prosecution examined as many as 12 witnesses. Statements of the accused/oppellants were recorded under Section 313 of the Code where they denied the circumstonces appearing against them and pleaded innucence and false implication. 7. Afte^ affording an qpportunity of hearing to the parties, laarned Additional Sess'wns Judge has convicted and sentenced the aeeUsed/appisllaritsotSdfbrementionecti ' • i 8. We have heard Mr. J.A. Lohani and Ms. Sofia Khan, counsels for the appellonts and Mr. Ravindra Agrawal P.L. for the State/respondents and perused both the judgments impugned as also both the record of the trial Court. 9. Learned eounsel for the aippelloints Mr.J.A. Lohouii and Ms. Sofia Khan, vehemently argued that prosecution has not collected any evidence to prove the guilt of the appellants and conviction is based on conjecture and surmises in absence of legal evidence conviction is not sustainable under the \aw. 10. Leamed counsel for the appellants further argued that present appellants have not caused any injury to, deceased Nainsingh with intent to cause his deo.th even o.ccording to the case of the prosecution while they we.re. petting the stones Nainsingh suddenly came to -i-he spot and he was assaulted by the stones pelted therefore if the case of the prosecution is admitted then even the act of the appellunts does not ^ ri- traveled beyond the scope of under Section 304 Part-ZE of the Indian Penal Code. 11. Learned counsel for the appellants placed reliance in the matter of Kapoor Lal v. State of U.P in which High Court of /lllahabad has held that in case of death of the person by single blow without premeditatiori and ot spur of nioment, in heat of passion the act of the accused falls under Section 304 Part-II of the Indian Pena! Code. 12. Learned counsel for the Qppellants further placed reliance in the motter of ^su and another v. State of Ra.iasthan In which H^h Court of Rajasthan hois held that in oibsence of intention to kill the deceased, accused who inflected fatal injury on head of deceased may be convicted under Section 304 part -II instead of under Section 304 part -I of the Indian Penal Code. 13. Learned counsel for the appellants also placed reliance in the matt-er of Manaal Sinah @ Manaat Rgm etc, y^lState of Himachal Pradestf in which High Court of Himachal Pradesh has held that deceased death as a result of stone injury on head absence of prove of motive and conflict betwe^n ocular and medical evidence accused is entitled for dcquittdi. 14. On the other hand, learned counsel for- the respondents/State opposed the appeals and submits that appellants firstly adduced Budhan Singh and Budhwaro Bai and when they entered into tfie house of the Budhiya Bai then intentionally with a view to cause fatal injury they had pelted stones in -tiie house of Budhiya Bai and also pelted stones upon the Nainsingh shows their grave intention of causing death of the Nainsingh and endcngering the life of other persons. 15. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the appellants in both the cases. Both the cases arising out against the ' 1991 CRI. L.J. 2159 ?-%88^kA^7.eR w a&; K6i' same offence appsllant Mangal Baiga in Sessions Trial No. 3/2004 and appellants Marigila! and Bhaira © Mahadeo in Sessions Trial No. 3/2003 were absconding therefore the case was bifurcated and after their arrest they were tried. 16. In the present case homicidal death as a result of fatal injury of Nainsingh has not been substantially disputed on the other hand, same is established by the evidence of br. R.K. Bhuarya ond his autopsy report which reveal that as a result of injury the head of deceased becomes flat and maxillary bone of the head were found -fractured shows the homicidal death as a result of fatalinjury. 17. As regards the complicity of the accused/appellants in the crime in question is concerned the conviction is based on the evidence of eye witnesses Bartu Singh, Budhiya Bai, Budhwaro Bai & Budhan Singh who have sub-itarititiily daposed in their evidence that Budhnn Singh & Budhwaro Bai were cutting the mustcrc! crop in their field. All 3 appellants came to their- field, deceased Nainsingh was present in his house. Appellonts pelted stones over Budhan Singh & Budhwaro Bai then they rushed to the house of Budhiya Bai and hidden inside their house at the same time Nainsingh came for bullock the appellants pelted stones over him. Firstly Mangilal pelted stones over the head of Nainsingh then he fell down then other accused assaulted him by stick, Nainsingh died on the spot then the appellants fled away from the spot. All the witnesses have specifically deposed that appe||ant ^(ingilal had thrown stones over the head of the Nainsin9h then other oppellants assaulted him by stick. Dr. R.K. Bhuarya has atso admitted in his evidence that injiiry over the head of Nainsingh may be caused by the stones. Autopsy reportand evidence of Or. R.K. Bhuorya reveal that all injuries were present over the head of the deceased except one injury over the scapula it shows that irregular shape of the stones vuas used for causing injury to the deceased and tde evidence of aforesaid witnesses reveal that appellant Mangilal thrown one stone over the ^. head of the deceased. Defence has cross examined these witnesses ir. detail but has not been able to ilticit anything in their crossexaminotion to discredit thejr testimony or to show that appellant Mongilal has not thrdwn stones ok^ei* the head of the deceased. The evidence of these witnesses also reveal that these all appelldnts have peltedstones in the house of Budhiyd Bai where Budha.n Singh & Budhwaro Bai were hidden. 18. After appreciating the evidence availabte on record, learned Additional Sessions Judge has co'ivicted the appelldnts under Sections 302/34 <& 336 of the Indian Penal Code but learned Additional Sessions Judge has not considered the material aspect of the case that appellants were pelting the stones without aiming to ony person and only Mangilal had thrown one stone over the head of the deceased. He has not repeatedly pelted the stone other appellcnts were present but evidence relating to assault made by the other' appellants is not corroborated by the medical evidence. The medical and ocular evidence relating to assault made by the other appellants except Mangilal is in conflict and no any injury except the head injury which was caused by Mangital was found on the body of the deceased. Although, the evidence reveal that atl appellants were pelting stones and had endangered the life of Budhan Singh. Budhwaro Bai & Budhiya Bai and they are acting in sharing corrimon i.ntenti'-.n bul' -rhe e.vidence reveal that other- appellants has not shared the common intention in causin9 the injury to the Nainsingh -t-hereby committed an illegality although appellont Mangilal has thrown the stone over the head of the Nainsingh but he has not repeated the injury, his act appears to be reckless act resulting into the death of the deceased Nainsingh. 19. The evidence adduced on behalf of the pnosecution is not sufficient for drawing an inference that cppellant Mangilal or others have inflected the injury with intent to cause the deoth of the deceased but throwing of good size of stones upon the persons shows ttiat appellant Mangilal was having knowled9e that as a result of his act deceased may die as -"^^.. (S Kl 20. held in case of Kapoor Lal v. State of U.P. <S Asu and amther v. State of Rd.iasthan (Supra} the act of appellant Mangilal does not traveled beyond the scope of under Section 304 Part-n of the Indian Penal Code but the act of all appellants is punishable under Section 336 of the Indiian Penal Code. For the foregoing i'easons, conviction and sentence of the appellanfs are not sustainable under the law. Consequently, the Griininal Appeal Nos. 535/2005 and 1241/2003 are. partty allowed. Conviction of the oppellants Man9al Baiga, Mangilal and Bhaira @ Mohadeo under Section 336of the Indian Penal Code are hereby affirmed. Conviction of the appellant Mangilal under Section 302 of the Indian Penal Code is altered in to under Section 304 Part-rE of the Indian Penal Code and is sentericed foriicustodial period i.e. ctJStQdyger'ipdsince 4/12/02 til! 'tb3<r^; ^rt^cti6nidna'senTenceofth^<jther(^ Baiga ond Bhaira @ Mahadeo under Section 302 of the Indian Penal Code are hereby set aside.Appellonts Mangal Baiga and Bhaira © Mahadeo be set at liberty fflt once. A\\ the appeltants be released if not required in any other case. r".^a- ^--^ - Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge .,.2^,.