3(I-Hc—78 ~ 3a W, WWI—é, Wat . W WQ??.A”\% .¢.'.M!:Og# 200 ( mm<iaiw> WW§WW matwm _ éswww Criminal Aggeal No.40 of 2001 1 . Nandkumar, S/o Chediia! Suryavanshi, Age 25 years. ' APPELLANTS: 2. Jag Prasad. S/o Jhariram Suryavanshi, Aged 35 years. 3. Khilawan, S/o Shiv $uryavanshi Aged about 45 years. Latelram. ‘ S/o Rambhau @ Ram Bharos, Aged 65 years. Rajkumar, S/o Latelram, Aged 32 years. Ramsharan, S/o Jhari Ram Suryavanshi, Aged about 40 years. All residents of Village: Chorha Devri, P.S. Ratanpur, Distt. Bilaspur (Chhattisgarh). - Versus - RESPONDENT: State of Chhattisgarh ‘ AND Criminal Adgeal No.1 007 of 2001 Keshav Prasad, S/o Narayan Suryavanshi, Aged about 32 years, R/o Village: Chorha Devri, P.S. Ratanpur, Distt. Bilaspur (Chhattisgarh). APPELLANT: i P.T.0. ‘ , XI~HC~78 HWWW G>Q @O/atwwki) WW 7% ( WW<W> mmm WWW‘ awarwwém WW§WW aKWW, ‘ :11 Q 1? ~- Versus ~ RESPONDENT: State of Chhattisgarh . Present: Mr. Abhay Tiwari. counsel for the appenants. Mr.-Akhil Mishra, Panel Lawye!’ for the State/respondent. Division Bench: Hon’ble Mr. L.C. Bhadoo and Hon’bte Mr. Dhirendra Mishra JJ. .‘ JUDGMENT (Delivered on 30‘“ March, 2007) L.C. BHADOO, J. 1. Criminal Appeal No.40/2001 filed by Nand Kumar & five others and Criminal Appeal No‘1007/2001 tiled by Keshav Prasad are arising out of the same judgment, theretore, they are being disposed of by this common judgment. 2. By these appeals, the accus [appellants have questioned legality and correctness of the judgment fconviction and order of sentence dated 13th December, 2000, pass ,d by the Additional Sessions Judge & Special Judge, Bilaspur, in Sessions Trial No.185l2000, whereby learned Additional Sessions Judge convicted and sentenced them as under: - Offence under which convict .d Sentences imposed Section 147 ofthe i.P.C. R.l. for one year to each accused Section 148 of the l.P.C. R.l. for two years to each accused P.T.O. XI-HC—78 wmm matwm WW§WW aqwm Section 452 read with'Section ‘ of the I.P.C. , 149 R.I. for three years‘and fine of Rs.500/- each‘ in default of payment of fine to further undergo R.l. for three months to eaéh accused. Section 323 read with Section of the i.P.C. for causing injury'to Vijay Kumar 149 R.l.forsix monthsto each accused Section 323 read with Section of the i.P.C. for causing injury Kamta Prasad 149 to R.l. forsix monthsto each accused Section 427 read with Section ofthe I.P.C. 11119 R.i.for one year to each accused Section 302 read with Section ofthe I.P.C. i 149 Life imprisonment to each accused Learned Additional Session Judge further directed that the substantive sentences impo ed upon each accused shaii run concurrentiy. 3. Case of the prosecution, in bri f, is that at about 8.30 pm. of 7-3-2000 at Viiiage: Choradevri, the acc sed persons formed uniawfui assembly and in furtherance of commo object committed riot by beating Vijay Kumar, Kamta PraSad & Ga eshia Bai. At that time, the accused persons were carrying deadi weapons like Lathi & axe and after making preparation to assault ijay Kumar, Kamta Prasad & Ganeshia Bai, the accused persons tre passed their house and also abused them in filthy language. in furt erance of common object, they inflicted i P.T.O. 3am, Wm, NWT W . @awé. WW(W) XI-HC—78 W {Mtogag 2W wwwm simple injuries to Vijay Kumar & Kamta Prasad and they committed mischief by damaging T.V. WW§WW éawm W$rm WWW & deck of Vijay Kumar and committed - murder of Ganeshia Bai by assauiting her with Lathi & axe. 4. The matter was reported by upon which the first informe lnvestigating Officer left for Vijay Kumar to Police Station: Ratanpur tion report Ex.P-1 Was registered. The the scene of occurrence. After giving notice to the witnesses, he prepared inquest EXP-28 on the body of Ganeshia Bai. The body of examination to the District Hi conducted post-mortem and opined that the death is due clothes of Ganeshia Bai wa custody, accused Nandkumi axe and in pursuance of that Jag Prasad gave memorandt was seized under EXP-1 1. f P-12 and in pursuance of ti EXP-13. pursuance of that, one bar Accused Rajkumar gave me that, one bamboo stick was Prasad gave memorandum bamboo stick was seized un memorandum EXP-20 and in Accused Latelral i Ganeshia Bai was sent for post-mortem aspitai, Bilaspur, where Dr. N.S. Chandel prepared the report EXP-4 in which he to injury to head. Sealed packet of the s seized under Ex.P—5. While in police ar gave memorandum EXP-8 regarding axe was seized under EXP-9. Accused rm EXP-10 and in pursuance of that,-axe rccused Khilawan gave memorandum Ex. at, one bamboo stick was seized under n gave memorandum EXP-14 and in nboo stick was seized under Ex.P~15. norandum EXP—16 and in pursuance of seized under EXP-1 7. Accused Keshav EXP-18 and in pursuance of that, one der EXP-19. Accused Ramsharan gave pursuance of that, one bamboo stick was sfeized under EXP-21. Shirt of accused Nandkumar was seized under EXP-22. Lungi of accused P.T.O. J Jag Prasad was seized under EXP-23. <§%\One jacket of accused KhilavJan was seized under EXP-24. One shirt XI-HC-78 marwm WW#1‘§@W %ei%msn%$r of accused Keshav Prasad w 25 was prepared :by the Pt examined by Dr. RIK. Pandey injuries cf Vijay Kum:ar were i report EXP-35 was; prepared. by Dr. R.K. Paridey and Recovered articles were. sen as seized under Ex P—25 Site plan Ex P- Itwa rl . injuries of Kamta Prasad were r and injury report Ex.P-34,was prepared. examined by Dr. R.K. Pandey and injury injuries of Ganeshia Bai were examined injury report EXP-36 was prepared. .tfor chemical examination to Divisional Forensic Science gaboratory, Bilaspur, from where the ‘report Ex.P-49 was received. l .After completion of investigati 'n, charge sheet was tiiedlin the Court of Chief Judicial Magistrate, Bil spur, who in turn committed the case to the Sessions Judge, Bilaspur from where learned Additional Sessions Judge received the ‘case on t nsfer for trial. . The proeecution examined 1 Witnesses at the trial Statements of the accused persons were recor ed under Section 313 of the CrP C in which they denied the m terial appearing against them in the prosecution eVidence and s ted that they are innocent they have been falsely impiicated in the rime. . Learned Additional Sessio s Judge after hearing counsel for respective parties, lconvicte and sentenced each of the accused persons as aforementioned. We have heard Mr; Abhay and Mr. Akhil Mishra, learn I respondent. iwari learned counsel for the appellants Panel Lawyer on behalf of the State/ P.T.O. . . Y 200{ . Wm<W> Wamirwm éaafrwmr mmwm 9. Mr. Abhay Tiwari has not disQuted the homicidal death of Ganeshia Bai. Moreover, as per the evidence of the eyewitnesses namely, Kamta Prasad (PW-1), Vijay Kumar (PW-3), Mst. Savita Bai (PW-4), ' Kamlesh Kumar (PW-1 2), also the evidence of Dr. N.S. Chandel (PW- 7) who has stated in his evidence that the injuries sustained by Ganeshia Bai on head w grievous and were sufficient in the ordinary course of nature to ause death, the death was on account of head iniury, it is establis that the death of Ganeshia Bai was r > homicidal in nature. 10.As far as Criminai Appeal No.1007/2001 flied- by Keshav Prasad against his conviction and se tence under Sections 147, 148, 452 read with Section 149, 323 read th section 149 for causing injury to Vijay Kumar, 323 read with Sectio 149 for causing injury to Kamta Prasad, 427 read with Section 149 or causing mischief and r302 read with Section 149 of the l.P.C. for ommitting the murder of Ganeshia Bai, is concerned, except Kamlesh Kumar (PW-12), no other witness has stated that Keshav Prasad the house after making pre aration to attack or commit the murder. Kamlesh Kumar (PW-12) ha stated in his evidence that after opening the door accused Keshav Pr sad pressed Kamta with Lathi, whereas, Kamta Prasad (PW-1) himsef has stated in his evidence that accused Keshav Prasad came with L thi and asked him & Jag Prasad not to indulge in quarrel. Vijay umar (PW-3) has not stated regarding . invoivement of Keshav Pras d in the Marpit, on the‘contrary, he has stated that When Marpit start d Keshav Prasad ran away. Savita Bai (PW-4) has also not stated t at accused Keshav Prasad was involved t P.T.O. e e h i x XI—HC—78 WW,W,W Wm<ww> mwm WWW WW§§Q°I®ER MWWW $Wm in the Marpit. Even Nirmala (PW-17) has not stated anything regarding , involvement of accused Kesh av Prasad in the Marpit. 11.Therefore, there is no legal admissible evidence on record regarding invoivement of accused/appellant Keshav Prasad in any of the crimes for which he has been canvacfed, nor there is evidence that he was forming a common object with other accused persons, as such, conviction and sentencesof accusedlappellant Keshav Prasad under the above Sections cannot be sustained. 12.in the result, the criminal app al bearing No.1007/2001 filed by Keshav Prasad succeeds and the s me is allowed. He is acquitted of the above charges. Conviction nd substantive sentences imposed upon it is stated that Keshav Prasad is already on bail, th refore, he need not surrender to his bail bonds and his bail bonds are ischarged. 13.Now, coming to conviction and sentence imposed upon accused] appellants Nandkumar, Jag asad, Khilawan, Latelram, Rajkumar & Ramsharan under Section 3 2 read with Section 149 of the l.P.C. for committing the murder of Ga eshia Bai, Nirmala (PW-17) has stated in her evidence that she was m rried to accused vJag Prasad. But once Baldau, father of Vijay Ku ar (PW-3), committed rape on her, therefore, a prosecution w launched against Baldau. During the pendency of'that criminal c e, the matter was compromised. She was kept as wife of Kamta P asad after observing social customs i.e. .bangle marriage which is commonly observed in Chhattisgarh. Thereafter, at the request f’Jag Prasad, her original husband, a Panchayat' was convened in that Panchayat it was decided that P.T.O. W wékW 91Ma [00 or him under the above offence are set aside. e\ r a a X1—HC—78 mw,m,m Q?:ZAS:.Q“...;O./..Q.M€’&{@O7 a1 200/ Wm WWWW) Wmm mmm‘ WW§MW mwm $W3T§3T ‘ since the wife of Jag Prasad nameiy, Nirmaia has beenkept by Kamta , Prasad, Jag Prasad be co to Jag Prasad. One day, w en she went to fetch water from a public x \ hand pump and told her tha she should ask her second husband to pay compensation to him. abuses among Jag Prasad about 8 p.m., Kamta Pras nsated. But no compensation was paid ' hand pump, Jag Prasad met her, asked her not to take water from the e returned without taking water. When she reached house. Kamta Prasad asked her as to why she has returned without water. Ther after, Kamta Prasad took her to the hand ' pump again, at that time, Ka ta Prasad was carrying Lathi in his hand. Jag Prasad was already s nding there. There was exchange of Kamta Prasad and they returned. At left his house carrying axe in his hand. when his wife Nirmaia persu ded him not to go, he left the house after pushing her and went to the shop of Haroon. Accused Khilawan was sitting there. Therefore, Ka ta Prasad assaulted accused Khilawan on his back with backside of he axe. Thereafter, there was exchange of abuses between the accu \ed persons and Kamta Prasad. At that time, Ramsharan. Keshav & ajkumar were not there. 14.Therefore, from the above fa , it is clear that the background of the crime in question was the as auit made by Kamta Prasad on Khilawan with the axe. It appears that thereafter, the accused/appellants herein came to the. house of Kam Prasad carrying Lathis& axe, where Kamta Pras‘ad, his brothe Kamlesh, nephew Vijay, his mother ,Ganeshia Bai and Savita wer taking their meals. \ 159Kamta Prasad (PW-1) has s ated in his evidence that'at the time of assault, accused Ramkhiiaw n, Latel, Jag Prasad & Nandkumar came \ P.T.O. m a e h \§ XI—HC~78 mam mwm WW&?§@W WWW %s¥%nm with Lathi & ax'e, accused Rzlmsharan. Rajkumar & Late) were carrying Lathi and accused Jag Prasad & Ramkhilawan were carrying axe. Accused Jag Prasad & khilawan attacked Kamta Prasad with ‘ backside of the axe as a re ult of which he sustained injury on knee and felt down. His nephew jay Kumar was standingthere, he asked the accused persons “Stop Stop” on which accused Ramkhiiawan assaulted him with backside fthe axe which hit on his head and Vijay Kumar fell down. Thereafte . Ganeshia Bai, mother of Kamta Prasad, came running and asked th t her son should not be assaulted. As Kamta Prasad was lying d , Ganeshia Bai, his mother, fell on him in order to save him from the a sauit. Thereafter, accused Jag Prasad & Khitawan assaulted his mot er with axe which hit on her head. Late! asked that she is dead le us go now. Thereafter, Jag Prasad damaged T.V. and deck. -1 has further stated that in the year 1997, he kept Jag Prasad's fe Nirmala as his wife after observing the custom of bangle marriage n November 1998 Nirmala again went to Jag Prasad Thereafter wh n he started resrdlng at Viilage Chorha Devri Nirmala again came nd stared livmg wrth him Accused Jag Prasad asked him that as he had kept his wrfe. he should compensate him 16.Vijay Kumar (PW-3) has s ted in his evidence that the accused persons entered the house a d started beating. Accused Nandkumar, Jag Prasad, ‘Rajkumar, Latel & Ramsharan were carrying Lathi in one hand and axe in another h . Accused Khilawan was carrying Lathi ‘ only. KhilaWan assaulted h x on his head and hand with Lathi. Alt the accused persons attacked his uncle ‘Kamta Prasad, accused Nandkumar, Rajkumar, Jag rasad & Ramsharan were attackingwith P.T.O. a i R m i o V W i XI—HC—78 WW W MWWW axe. Kamta Prasad fell down. In order to save Kamta Prasad, his grand-mother Ganeshi Bai asked as to why her son is being beaten and she c'overed the body of Kamta Prasad by falling on him. The r’accused persons assaulted Ganeshia Bai with axe & Lathi as a result of which her head was fractured and brain material came out. 17.Savita Bai (PW-4) has also corroborated the above evidence and stated that the accused persors entered the house and started beating Kamta Prasad with Lathi & . Accused Nandkumar, Jag Prasad & asad with axe and remaining accused persons assaulted with Lathi. hen Ganeshia Bai came to intervene, Latel assaulted her with Lathi. Jag Prasad & Ramsharan with axe and Khilawan with Lathi. as a re ult of which she sustained injuries on head, hands & legs. Accused hilawan assaulted Vijay with Lathi. 18. Kamlesh Kumar (PW-12) has lso corroborated the above evidence. 19.From the above evidence, it I i a Ramsharan assauited Kamta established that the cause of quarrel was that Kamta Prasad kept rmala, wife of Jag Prasad, as his wife and Jag Prasad was claimin compensation which was not paid by » complainant Kamta Prasad. Therefore, there was some dispute w between them. On the fateful day, when Nirmala went to fetch water from the hand pump, Jag Pr sad asked her to tell Kamta Prasad to pay compensation, therefore, he returned without water. Then Kamta Prasad went to the hand pum and there was some quarrel between Kamta Prasad & Jag Pras . Thereafter, in the evening, Kamta ‘Prasad assaulted Khilawan on his back with axe. As a retaliation, the accused persons carrying Lath & axe in their hands came to the house \ r \\ of Kamta Prasad to give beatin to them. W WW e r W a \ XI—HC-78 EWWW . ..’.. "‘... G) KJ§¢®MN4§¥l 07/007 I} WW(W> WWW WWW WW§WW mmaféam ‘ ' %mf%qai%¥r 20.!n the background of these fihcts and evidence on record, it cannot be, r inferred that the accused pe ns formed unlawful assembly in order to commit the murder of Gan a Bai. In factywhen beating was given to Khilawan by Kamta Pra , all the accused persons came to 'give beating to Kamta Prasad & o ers as a retaliation; 21 .in the circumstances. form t e above evidence it cannot be held that the accused persons ca e after making preparation or with . premeditation for committin the murder of Ganeshia Bai and when they started beating Kamta asad, Ganeshia Bai ail the way came in order to save Kamta Prasad, therefore, the accused persons assaulted her also and she sustainedf tal injuries. But the'manner in which the accused persons carried Lat is 8: axe and assaulted Kamta Prasad & others, it can be inferred hat the accused persons were having knowledge that by assaultin with Lathi & axe they are likely to cause death. Therefore, common bject of the assembly was not to commit the murder of Ganeshia Bai. t to give beating to Kamta Prasad, who attacked Khilawan with axe in the evening. Hence, conviction and substantive sentences impo ed upon accused persons Nandkumar, Jag Prasad, Khiiawan, La iram, Rajkumar & Ramsharan under Section 302 read with Secti n'149 of the i,P.C. cannot be sustained. instead thereof, they are ii bie to be convicted for commission of offence under Section 304 art~li of the i.P.C. For this View. we are ' fortified by the judgment of th Apex Court in the matter of Ramkishan and others vs. State of Raj sthan reported in 1998 Cri.L.J. 54. 22.As far as conviction and se tences imposed upon accused persons i a ja Nandkumar, Jag Prasad, Kh wan, Latelram, Rakumr & Ramsharan RIO. r o e i s r u ammhm, W WT W®.:a.:'.w.?/M(%0{ 200{ WW(W) WWW§WW WWW éamm under Sections 147, 148 and 452 read with section 149 of the l.P.C. are concerned, from the evidence mentioned eariier, it is established that the accused persons we 1t to the house of Kamm Prasad carrying ’ Lathis & axe in their hands th intention to assault. Therefore, they have been rightiy convictedf r rioting, armed with‘deadly weapons and entering the house of Kamta Prasad after preparation for causing hurt, assault or wrongful restrai Further, the accused/appellants have been rightly convicted and entenced under Sections 323 read with Section 149 of the l.P.C. fo causing injury to Vijay Kumar and 323 read with Section 149 of the .P.C. for causing injury to Kamta Prasad. They have been rightly convi ed under Section 427 read with Section 149 of the l.P.C. also, for da aging T.V. & deck. 23.ln the result, Criminal Appe l No.40/2001 of the appellants namely, Nandkumar, Jag Prasad. Khi awan, Latelram, Rajkumar & Ramsharan partiy succeeds and the sam is partly allowed. a. Conviction and subs ntive sentences imposed upon them under Section 302 re d with Section 149 of the l.P.C. are set aside and they are ac uitted of thesaid charge, instead thereof, each of them is convi ted under Section 304 Part-ll read with ' and sentenced to undergo R.l. for five mamm WWW Section 149 of the l.P years. . b. Conviction and sent s imposed upon them under Sections 147, 148, 452 read with Section 149, 323 read with Section 149 for causing injury to ViJay Kumar, 323 read with Section 149 for c . causing injury to Kamta Prasad and 427 read with Section 149 i of the l.P.C. are mai1tained. All the substantive sentences \ P.T.O. i i i n. . . e e XI-HC-78 h: 3a Wart -®?f1w1’r,r, W A 4. aww 200; mm<W) mmwm imposed upon them sf by the tria! Court. c. it is ,smted that acct WW E®W $WSTW ised Nandkumar & Jag Prasad are in detention for about sewen years, therefore, they be set at liberty forthwith, if not require‘ d. Remaining accused- Rajkumar & Ramshai surrender before the sentence. However, i1 for set off for the dete against the above sent Sd/- L.C. BHADOO i Judge i Iali run concurrently, as has been ordered r :i in any other case. Khiiawan, Lateiram, 'an are on bail. They are directed to trial Court to serve out the remaining is made clear that they shali be entitled ntion period already undergone by them ence imposed upon them. Sdl- ‘\. Dhirendra Mishra’i” x « Judge persons namely, P.T.O. ‘5